CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 28356/95                       by Stanislaw STYK                       against Poland           The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  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 30 May 1995 by Stanislaw Styk against Poland and registered on 29 August 1995 under file No. 28356/95;         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 1926, is a retired military academy teacher, residing in Warsaw.         The facts of the case, as submitted by the applicant, may be summarised as follows:     Particular circumstances of the case         On 25 November 1992 the Veterans' and Persecuted Persons' Office (Urz*d do Spraw Kombatantów i Osób Represjonowanych) informed the applicant that on the same date the Office was instituting ex officio proceedings pursuant to the February 1991 Act on Veterans and Persecuted Persons in order to verify whether under this legislation he was entitled to maintain his veteran status.   The applicant was asked to furnish information relating to the grounds on which he had acquired this status in 1985 on the basis of the 1982 Veterans' Act.         By a decision of 26 February 1993 the Director of the Veterans' and Persecuted Persons' Office (Kierownik Urz*du ds. Kombatantów i Osób Represjonowanych) took away the applicant's veteran status.   This decision was taken in accordance with Article 25 read together with Article 21 of the Act on Veterans and Persecuted Persons of February 1991 which provided, inter alia, that a person who had served in the former internal security services ("aparat bezpieczenstwa publicznego") was not entitled to veteran status.   As in 1944 the applicant had served in the Internal Security Corps (Korpus Bezpieczenstwa Wewn*trznego), he fell into the category of persons who, under those provisions, were to be deprived of this status.         The applicant lodged an appeal against this decision with the Supreme Administrative Court, submitting that he had not obtained veteran status exclusively for his service in the security services, but also due to the fact that he had previously served in the anti-Nazi resistance, the People's Army (Armia Ludowa) and, subsequently, in the regular Polish Army.   He had only served in the security services for a short period in 1944 as his army unit had been incorporated therein. He had had no influence on this decision.   He submitted that his service in the Army had been exemplary throughout his career, that he had served the independence of Poland and had never been subject to any disciplinary or criminal conviction until his retirement in 1973.   The applicant finally submitted that the impugned decision was unfair, that it amounted to a form of collective liability and that it was in breach of the rule of law as it had deprived him of his validly acquired rights.         In its reply of 14 April 1994, the Veterans' and Persecuted Persons' Office submitted that the circumstances relied on by the applicant as to   his service were of no relevance to the case.   It was not in dispute between the parties that the applicant had served in the internal security forces from July to November 1944.   This circumstance was confirmed by the curriculum vitae which the applicant had prepared in 1989, in which he had further stated that he had participated in the fight with "reactionary underground" ("reakcyjne podziemie"). As under the legislation of February 1991 persons having served in the security services lost their veteran status, the decision contested by the applicant was lawful.         In a judgment of 20 February 1995 the Supreme Administrative Court (Najwyzszy S*d Administracyjny) dismissed the applicant's appeal. The Court considered that its jurisdiction was limited to examining whether the impugned decision was in conformity with applicable substantive law and with the procedural provisions insofar as any procedural irregularities could have adversely affected the outcome of the proceedings.   In the present case it clearly transpired from the applicant's curricula vitae prepared in 1978 and 1985 that in 1944 he had been a member of the Internal Security Corps (Korpus Bezpieczenstwa Wewn*trznego).   Therefore the administrative authority had had sufficient grounds for a finding that the applicant had in fact served therein.   The assessment of the evidence in this respect was not arbitrary.   The relevant provisions of the 1991 Veterans' Act provided that persons having served in the former internal security services were not eligible to acquire veteran status and that those who had acquired it were to be stripped thereof, regardless of their function and grade within those services.   This interpretation had been reinforced by the Constitutional Court which in its judgment of 15 February 1994 had ruled that   service in the former internal security services, in the light of the latter's activities directed against independence organisations, had to be assessed negatively, regardless of the actual status of persons having served therein. Thus, under the relevant legislation the very fact of the applicant's service in the Internal Security Corps, whose purpose was to suppress organisations fighting for the national independence of Poland, must have entailed the loss of his veteran status.   The Court concluded that the impugned decision was in conformity with the law.     Relevant domestic law         The February 1991 Act on Veterans and Persecuted Persons took away   entitlement to the veteran status accorded by virtue of the Veterans' Acts of 1982 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 security services ("aparat bezpieczenstwa publicznego") was not entitled to acquire veteran status, and those persons who had acquired it, were to lose it.         Under the Veterans' Acts of 1982, which was subsequently replaced by   the February 1991 Act on Veterans and Persecuted Persons, veteran status gives rise to various special employee 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.   The veterans who remain in employment are entitled to ten days' additional paid leave per year.   The veterans 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 Veterans' Act provides that persons who have lost their veteran status retain their 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 para. 4 of the February 1991 Act, if a decision is appealed against to the Supreme Administrative Court, the rights stemming from the veteran status   are suspended until a final judgment is taken.   COMPLAINTS         The applicant complains under Article 6 that he was denied a fair hearing as the decisions concerned deprived him of his status of a veteran.   He complains that this decision was unfair and to his detriment.   He complains under Article 14 of the Convention that he was deprived of this status, whereas members of other armed forces and organisations were not.   THE LAW   1.     The applicant complains under Article 6 (Art. 6) of the Convention that the decisions concerned deprived him of his veteran status.         Article 6 (Art. 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       ... ."         The Commission must first ascertain whether Article 6 (Art. 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 (Eur. Court HR, Kerojärvi v. Finland judgment of 19 July 1995, Series A no. 322, p. 12, para. 32).         In the present case the Commission observes that under Polish law the veteran status had a direct bearing on the applicant's pecuniary interests in that the persons having such a status enjoy certain special employment and social insurance benefits.   The decision which took this status away from the applicant automatically deprived him of those benefits.   The Commission concludes that the dispute at issue was decisive for the scope of the applicant's civil rights and that, consequently, Article 6 (Art. 6) of the Convention is applicable in the instant case.         However, the Commission observes that the applicant does not allege any particular shortcomings in the procedure followed, but challenges the outcome of the proceedings.   The Commission recalls in this respect that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g. No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).         The applicant's complaint under Article 6 (Art. 6) is therefore in this respect manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     Insofar as the applicant could be understood as complaining that the result of the above proceedings amounted to an interference with his property rights as guaranteed by Article 1 of Protocol No. 1 (P1-1) to the Convention, the Commission observes that Poland ratified this Protocol only on 10 October 1994.   The first-instance administrative decision which deprived the applicant of his veteran status was taken on 26 February 1993.   Pursuant to Article 25 para. 4 of the February 1991 Act, if a decision is appealed against to the Supreme Administrative Court, the rights stemming from the veteran status are suspended until a final judgment is taken.   Thus, the Commission 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 20 February 1995 and that it was only this decision which definitely deprived the applicant of his veteran status and his social insurance rights stemming therefrom.         It is true that, according to the Convention organs' case-law, the making of contributions to a pension fund may, in certain circumstances, create a property right in a portion of such fund and such right may be affected by the manner in which the fund is distributed (No. 4130/69, Yearbook 14, pp. 224 and 240 et seq.; No. 5849/72, Dec. 16.12.74, D.R. 1, p. 46; No. 9776/82, Dec. 3.10.83, D.R. 34, p. 153; No. 12264/86, Dec. 13.7.88, D.R. 57, p. 131).   The Commission further recalls that the rights stemming from paying contributions to social insurance system are pecuniary rights for the purposes of Article 1 of Protocol No. 1 (P1-1) to the Convention (Eur. Court HR, Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV, no. 14, p. 1142, paras. 39-41).   However, even if it is assumed that Article 1 of Protocol No. 1 (P1-1) guarantees persons who have paid contributions to a social insurance system the right to derive benefits from the 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).         In the present case the applicant lost only his entitlement to the social insurance benefits due to veterans, but, in accordance with Article 26 of the Act on Veterans and Persecuted Persons of February 1991, 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, his principal social security entitlements having remained intact.   The Commission observes that the February 1991 Act on Veterans and Persecuted Persons was partly intended as a condemnation of the political role which the communist security services had played in establishing the communist regime and in repression of 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 for the independence of Poland in the 1940s and 1950s, did not merit the special privileges which were accorded to them by the 1982 Veterans Act.   The Commission 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 manner contrary to   Article 1 of Protocol No. 1 (P1-1).         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         Insofar as the applicant complains under Article 14 (Art. 14) of the Convention that he was deprived of veteran status whereas members of other armed forces were not, the Commission, having regard to its findings concerning the complaint under Article 1 of Protocol No. 1 (P1-1) to the Convention,   considers that the present complaint does not disclose any appearance of a violation of Article 14 (Art. 14) of the Convention.    It follows that this complaint is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission, unanimously,           DECLARES THE APPLICATION INADMISSIBLE.         M.-T. SCHOEPFER                                J.-C. GEUS         Secretary                                    President    to the Second Chamber                       of the Second Chamber