CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                       Application No. 28996/95                     by Cezary ZUKOWSKI                     against Poland        The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 1997, the following members being present:             Mrs   G.H. THUNE, President           MM    J.-C. GEUS                G. JÖRUNDSSON                A. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY                P. LORENZEN                E. BIELIUNAS                E.A. ALKEMA                A. ARABADJIEV             Ms    M.-T. SCHOEPFER, 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 4 May 1995 by Cezary Zukowski against Poland and registered on 30 October 1995 under file No. 28996/95;        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 applicant, a Polish citizen born in 1958, is a prison guard residing in Plock.        The facts of the case, as submitted by the applicant, may be summarised as follows:        On 13 December 1994 the applicant informed the Plock District Prosecutor that certain documents in his employment file had been falsified by L.M., the Plock prison governor.   Subsequently, L.M. was appointed to the post of director of the Central Prison Administration.        On 13 January 1995 the Central Prison Administration ordered that the applicant undergo a psychiatric examination.        On 12 February 1995 the Governor of Plock prison suspended the applicant from the exercise of his functions.        On 19 June 1995 the Governor of Lódz prison decided that a disciplinary penalty of dismissal from service should be imposed on the applicant.   The Governor found that the applicant had informed the press about the falsification of his employment documents and considered that those charges were "at least premature" and that the applicant had been disloyal towards the prison administration in that he had made denigrating public statements about it.   The applicant had, moreover, shown lack of good faith in that he had refused to cooperate in the disciplinary proceedings.        The applicant filed an appeal against this decision with the Central Prison Administration, headed by L.M.        On 29 June 1995 the medical panel, having examined the applicant, found that he was fully able to carry on his work as prison guard.        On 7 July 1995 the Kutno District Public Prosecutor charged L.M. with falsifying the applicant's employment documents.        On 24 July 1995 the Deputy Director of the Central Prison Administration decided that the decision of 19 June 1995 should be reconsidered as not all relevant circumstances of the case had been established with sufficient clarity.   In particular, it had not been established what information the applicant had in fact given to the press.   Moreover, the decision to institute   disciplinary proceedings had not been properly served on him.        On 11 August 1995 the Governor of Plock Prison found the applicant guilty of having failed to comply with his superior's order to appear at the Regional Prosecutor's Office in Wloclawek on 26 July 1995, of an unjustified absence at work on 26 and 27 July 1995 and of having given untrue information to the press which could lower his immediate superiors in social esteem, and imposed on him a penalty of dismissal from service.        On 21 August 1995 the Lódz Prison Governor upheld this decision.        On 6 September 1995 the Plock Prison Governor dismissed the applicant from service on the basis of the decisions of 11 and 21 August 1995.        On 13 September 1995 the Lódz Prison Governor upheld this decision.        The applicant lodged an appeal against the decisions pronounced in the disciplinary proceedings and against his dismissal, submitting in particular that they amounted to a punishment for the fact that he had complained to the Public Prosecutor about his employment documents having been forged to his detriment by L.M.        In December 1995 the Wloclawek Regional Prosecutor submitted to the Wloclawek District Court (S*d Rejonowy) an indictment against L.M. on charges of falsification of documents.        On 19 January 1996 the Supreme Administrative Court (Naczelny S*d Administracyjny) pronounced a judgment in the applicant's case.   The Court observed that it lacked jurisdiction to examine the applicant's appeal insofar as it related to the decisions issued in the disciplinary proceedings as by virtue of the relevant provisions of the Code of Administrative Procedure such proceedings were expressly excluded from its jurisdiction.   However, following the case-law of the Supreme Court and the Supreme Administrative Court, decisions relating to the assessment, career and termination of the career of certain categories of civil servants, including prison guards, should be regarded as ordinary administrative decisions and as such they were subject to the Court's review as to their lawfulness.   The Court further noted that under the Prison Administration Act if a disciplinary penalty of dismissal from service was imposed, its necessary consequence had to be a subsequent decision of dismissal. As in the present case such a penalty had been imposed in the disciplinary proceedings, the Court considered that the subsequent dismissal from service was in conformity with the law.   Accordingly, the impugned decision of dismissal from service had to be upheld as being lawful.        At an unspecified later date the Wloclawek District Court convicted L.M. of forgery of the applicant's employment documents, sentenced him to eight months' imprisonment and a fine and suspended the execution of the prison sentence.        On 30 August 1996 the Minister of Justice, carrying out his function of supervising the lawfulness of disciplinary proceedings against prison guards,   quashed the decisions of 11 and 21 August 1995 issued in the disciplinary proceedings against the applicant on the ground that the impugned decisions were in flagrant breach of the law. In particular, the facts which had served as a basis for the applicant's dismissal had not been fully established and no relevant evidence had been taken and cited in the decisions.   The applicant subsequently was reinstated into service.     COMPLAINTS        The applicant complains under Article 6 of the Convention about the outcome of the proceedings in that his dismissal from work amounted to a punishment for the fact that he had requested the Public Prosecutor to institute criminal proceedings concerning falsification of his employment documents.   He submits that he was deprived of access to court as no court had jurisdiction to examine the lawfulness of the decisions pronounced in the disciplinary proceedings and of his dismissal.   THE LAW        The applicant complains under Article 6 (Art. 6) of the Convention about the outcome of the proceedings concerned and submits that he did not have access to a court competent to examine the lawfulness of the decisions pronounced in the disciplinary proceedings and of his dismissal.        Article 6 (Art. 6) of the Convention in its relevant part reads:        "1.   In the determination of his civil rights and obligations or      of any criminal charge against him, everyone is entitled to a      fair ... hearing ... by (a) ... tribunal ..."        The Commission first recalls the Convention organs' case-law according to which   disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6 para. 1 (Art. 6-1) of the Convention (Eur. Court HR, Massa v. Italy judgment of 4 August 1993, Series A no. 265-B, p. 20, para. 26; Neigel v. France judgment of 17 March 1997, Reports 1997-II, No. 32, para. 43).    Consequently, no right of access to a court can be derived from this provision as regards such disputes.        However, in the present case the Commission is not called upon to determine whether Article 6 (Art. 6) is applicable to the proceedings concerned. Under Article 25 (Art. 25) of the Convention, the Commission may receive petitions from any person claiming to be a victim of a violation of the rights set forth in the Convention.   The Commission recalls that the answer to the question whether an applicant can claim to be a victim of a violation of the Convention depends largely on the legal interest which the applicant has in a determination of his allegations of Convention breaches (No. 9320/81, Dec. 15.3.84, D.R. 36, p. 24).   A person who has obtained redress at the domestic level for the alleged violations of the Convention cannot claim to be a victim of those violations (No. 17926/91, Dec. 28.6.93, D.R. 75, p. 167).        The Commission notes that in the present case   the applicant in fact had access to a court competent to determine the lawfulness of his dismissal and that he availed himself thereof by lodging an appeal with the Supreme Administrative Court.   In its judgment of 19 January 1996 the Court examined his appeal in this respect and found that the dismissal from service was in conformity with the law.   It is true that the Court lacked jurisdiction to deal with the applicant's appeal insofar as it was directed against the decisions pronounced in the disciplinary proceedings against the applicant as under the Polish Code of Administrative Procedure such competence is clearly excluded from the Court's jurisdiction.   However, the Commission observes that, in any event, the Minister of Justice by his decision of 30 August 1996 quashed the decisions which had imposed a disciplinary penalty on the applicant, considering that those decisions were in flagrant breach of the law.   The applicant was subsequently reinstated into service. Therefore the applicant has obtained the result sought, i.e. the determination that the decisions concerned were unlawful.        The Commission concludes that the applicant obtained redress at the domestic level for the alleged violation of the Convention.   Under Article 25 (Art. 25) of the Convention he cannot therefore claim to be a victim of this violation.        It follows that the application must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,          DECLARES THE APPLICATION INADMISSIBLE.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber