FIRST SECTION

DECISION

Application no. 76980/12 Grzegorz OLEJNICZAK against Poland

The European Court of Human Rights (First Section), sitting on 6 February 2018 as a Committee composed of:

Aleš Pejchal, President, Krzysztof Wojtyczek, Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 20 November 2012,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Grzegorz Olejniczak, is a Polish national, who was born in 1974 and lives in Kalisz.

The circumstances of the case

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

3. The applicant sat an exam for admission to the bar composed of legal counsels ( radcowie prawni ) in 2006, organised under 1982 Legal Counsels ’ Act as it stood at that time (“the 1982 Act” or “the old regime”).

4. He failed the exam as he received 67.5 credits while the minimum threshold for passing it was 80. This was established by way of a resolution ( uchwała ) of 12 May 2006 of the Poznań Legal Counsels ’ Examination commission acting under the provisions of the 1982 Act as it stood at that time.

5. The applicant lodged an appeal with the Minister of Justice against the decision of the commission, complaining that it had wrongly assessed his results and, consequently, also his suitability for the profession.

6. Subsequently, three sets of proceedings were held in respect of his appeal.

1. The first set of proceedings

7. On 13 July 2006 the Minister dismissed his appeal. He was of the view that under the provisions of law as it stood at that time, namely Article 36(9) item 2 of the 1982 Act, he did not have the power to make a substantive reassessment of the results of the exam as established by the commission and, consequently, of the applicant ’ s suitability for the profession. The ministerial supervision was limited to reviewing compliance of the commission ’ s decision only with purely formal requirements (e.g. the counting of the points received by a candidate).

8. The applicant lodged an appeal with the Warsaw Regional Administrative Court. He complained that the contested decision should have examined the substance of his complaint, namely the question of fairness of the exam procedure in its entirety, including whether it was objective and its results accurately reflected the applicant ’ s knowledge. It was, in the applicant ’ s view, not the case which in turn had distorted his result to his detriment. The shortcoming in the procedure rendered the exam unfair as a whole.

9. On 7 May 2007 the court quashed the Minister ’ s decision and held that it could not be executed. The court found that the decisions given during the exam were administrative decisions subject to normal full review by the appellate authority under the general provisions of administrative procedure. The Minister should have examined the applicant ’ s case in full as to the substance as the second-instance administrative power.

10. The minister appealed. It was argued that he did not have a right to make a full assessment of the exams, including re-examination and re ‑ assessment of the candidates ’ results. It was further argued that in any event section 36(9) item (2) of the 1982 Act had been abrogated by the Constitutional Court by its judgment K 30/06 of 8 November 2006.

11. The Supreme Administrative Court dismissed the Minister ’ s appeal. It held that the Minister certainly had a right to review the fairness of the procedure. The fact that section 36 (9) item 2 of the 1982 Act had been abrogated following the judgment of the Constitutional Court was of no legal relevance as it was the legal situation obtaining when the contested decision had been given which was relevant to the case, not the new situation originating in the judgment of that court.

12. The proceedings were conducted again.

2. The second set of proceedings

13. On 1 April 2008 the Minister quashed the commission ’ s decision and discontinued the proceedings. It referred to the judgment of the Constitutional Court, referred to above, whereby section 36(9) item 2 of the 1982 Act was found to be in breach of the Polish Constitution and was abrogated. It was noted that prior to this judgment the exams for admission to the profession of legal counsel were conducted by commissions organised at the Ministry ’ s level. Appeals against their decisions were available to the minister. After abrogation of the relevant provision of that Act, the ministerial commissions had ceased to exist and the minister lost powers to examine appeals against their resolutions. In the Minister ’ s view, the legal consequence of this judgment was that not only that the decision of the commission, created and functioning under the old legal regime, was no longer binding, but also that the Minister was no longer entitled to examine the unsuccessful candidates ’ appeals on the merits as the applicant wished to have done. There was no legal basis in existence which would allow for the examination of the applicant ’ s appeal.

14. The applicant lodged an appeal with the Warsaw Regional Administrative Court, essentially reiterating his earlier arguments (failure to examine the essence of his complaint about alleged unfairness, lack of objectivity of the exam procedure, erroneous assessment of his results).

15. On 3 December 2008 the Minister ’ s decision was quashed. The court held that it had disregarded both the provisions of the administrative procedure and the legal directions given to the Ministry in the Supreme Administrative Court ’ s previous judgment. The change of legal situation following the Constitutional Court ’ s judgment was of no legal relevance for the case. The Minister remained obliged to examine the applicant ’ s appeal against the decision which in 2006, prior to this judgment, had a legal basis; the Minister had power to examine this kind of appeal. The contested decision not only evaded the obligation to carry out the legal appraisal of the assessment of the applicant ’ s suitability for the profession made by the commission, but also made it impossible for the applicant to have such an appraisal conducted again. This was in breach of principal tenets of the rule of law.

16. The Minister lodged a cassation appeal and on 19 January 2010 the Supreme Administrative Court dismissed it again.

17. The proceedings were conducted anew.

3. The third set of proceedings

18. On 15 April 2010 the Minister discontinued the proceedings, holding that under the 1982 Act as amended he lacked competence to deal with the applicant ’ s appeal against the Commission ’ s decision. There was no legal provision in existence conferring on him jurisdiction in respect of decisions given by the examination commissions which had ceased to exist after the abrogation of section 36(9) item 2 of the 1982 Legal Counsels ’ Act.

19. The applicant appealed, essentially reiterating his previous arguments. He also referred generally to the Convention and in particular to Article 13, arguing the lack of effective remedy to examine his grievances.

20. On 15 September 2010 the Warsaw Regional Administrative Court dismissed his appeal. It held that this time the Minister had applied the legal directions expressed in the previous judgment. After the provisions of the 1982 Act had been amended, there was no procedure available whereby resolutions of the former commissions could be reviewed by the Minister.

21. The applicant appealed. He reiterated his previous arguments and additionally argued that the contested decision failed to respect the principle under which legal situations of persons who had instituted proceedings prior to the judgment of the Constitutional Court should not be adversely affected as a result of that judgment ( zasada ochrony interesów w toku ).

22. Ultimately on 27 March 2012 the Supreme Administrative Court dismissed his cassation appeal.

23. As a result, even though the applicant ’ s appeal against the Commission ’ s decision had been lodged but never examined on the merits, the decision became final and binding.

24. The applicant was not allowed access to the profession on the basis of the exam he sat in 2006. Instead, he chose to follow the standard training ( aplikacja ), sat the relevant exams again and was admitted to the profession in 2013.

COMPLAINTS

25. Under Article 6 and 13 of the Convention the applicant submitted that due to the lack of any legal remedy to have his appeal examined against the commission ’ s decision, issued under the old legal regime, and as a result of a loophole that occurred after the Constitutional Court ’ s judgment, he had been deprived of his right to a fair hearing and an effective legal remedy. He also complained that due to the disregard of the Constitutional Court ’ s directives on how to handle ongoing situations by the Ministry of Justice he had been discriminated against as his situation was similar to other trainees that had applied for enrolment on the bar list. In consequence, it led to the de facto validity of the unfavourable decision of the commission.

26. He further relied on Article 14 of the Convention.

THE LAW

27. Under Article 6 and 13 of the Convention the applicant complained he was deprived of his right to a fair hearing and an effective legal remedy.

28. The above provisions of the Convention, in so far as relevant, read as follows:

Article 6

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

29. The Court notes that the applicant sought admission to the profession of legal counsel, challenging, by way of administrative and subsequently judicial proceedings, the assessment of results of the exam which he had sat and failed in 2006. The disagreement related to the appraisal of his professional ability in the light of the results he obtained and, consequently, to his claim of a right to be admitted to the profession. It has therefore to be determined first whether Article 6 § 1 of the Convention was applicable to the circumstances of the case.

30. In the light of the Court ’ s established case-law concerning proceedings admission to a liberal profession where the applicant challenged before the domestic authorities essentially the manner in which a relevant domestic authority carried out its function of evaluating the candidates ’ knowledge and experience for carrying on a profession, the Court was of the view that an assessment of that kind was “akin to a school or university examination and ... so far removed from the exercise of the normal judicial function that the safeguards in Article 6 cannot be taken as covering resultant disagreements” ( Van Marle and Others v. the Netherlands , 26 June 1986, § 36, Series A no. 101, p. 12, § 36). It concluded that Article 6 was not applicable to such proceedings (ibid., § 37).

31. In the present case the applicant ’ s complaints concerned, in essence, what he regarded as an incorrect assessment of his ability and knowledge by the examination commission (see, in particular, paragraphs 8, 14 and 19 above). Hence the substance of his case related to an assessment of his knowledge and experience.

32. In accordance with its case-law, referred to above, the Court considers that an assessment of that kind, evaluating knowledge and experience for carrying on a profession under a particular title, being akin to a school or university examination and is so far removed from the exercise of the normal judicial function that the safeguards in Article 6 cannot be taken to cover resultant disagreements.

33. There was thus no “ contestation ” (dispute) within the meaning of Article 6, which accordingly was not applicable in the instant case.

34. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

35. The applicant also complained, relying on Articles 13 and 14 of the Convention, that due to disregard of the Constitutional Court ’ s directives how to handle ongoing situations by the Ministry of Justice he had been discriminated against as his situation was similar to other trainees that applied for enrolment on the bar list. In consequence it led to the de facto validity of the unfavourable decision of the commission.

36. The Court, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, finds that these complaints do not disclose any appearance of a violation of the Articles relied on by the applicant. It follows that this part of the application is manifestly ill-founded and must be rejected i n accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 1 March 2018 .

             Renata Degener AleÅ¡ Pejchal              Deputy Registrar President