CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 7 mars 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s3710E110 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; widows:0; orphans:0 } .s393990F0 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; widows:0; orphans:0 } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5830ECD9 { width:0.2pt; display:inline-block } .sCA6C4ED6 { width:194.76pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     FOURTH SECTION DECISION Application no. 27866/15 Tomasz SPYCHAJ against Poland The European Court of Human Rights (Fourth Section), sitting on 7   March 2017 as a Committee composed of:   Nona Tsotsoria, President,   Krzysztof Wojtyczek,   Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar, Having regard to the above application lodged on 3 June 2015, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Tomasz Spychaj, is a Polish national, who was born in 1975 and lives in Ćmielów. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant is a retired officer of the Government Protection Bureau ( Biuro Ochrony Rzadu – “the GPB”) where he served from 6   May 1996 until 18   November 2011. 4.     Under the relevant provisions of the Government Protection Bureau Act 2001 (“the GPB Act”) a GPB officer has a right to an apartment or, if he or she renounces that right, the pecuniary equivalent should be paid to the officer on the basis of a civil contract with the head of the GPB. 5.     On 29 July 2003 the applicant asked the head of the GPB to pay him the pecuniary equivalent to an apartment. His request was registered by the organisational unit of the GPB and since then the applicant has been waiting for the payment. According to the applicant’s submissions the payment due to him amounts to 142,512 euros (EUR). 6.     On 13 December 2011 the applicant retired. 7.     In accordance with the relevant provisions of the GPB Act he asked the head of the GPB to issue a decision confirming his right to be paid the equivalent of an apartment. 8.     On 24 July 2013 the head of the GPB refused to issue the requested decision. 9.     The applicant appealed to the Minister of Internal Affairs. 10.     On 6 September 2013 the Minister annulled the challenged decision and confirmed that the applicant retained his right to the apartment or to its equivalent. The Minister found that the applicant had fulfilled all the statutory conditions and therefore, his right to the apartment was confirmed. According to the reasoning, the decision itself was of a declaratory nature; it did not grant the right in question, but confirmed its existence. 11.     The Minister’s decision was not appealed against to the administrative court and became final. 12.     In the meantime, on 15 April 2013, the applicant requested that the pecuniary equivalent be paid to him. On 22 April 2013 the head of the GPB informed him that he had been placed on the list of persons waiting for the pecuniary equivalent of an apartment to be paid; he was number 305 on the list and payments would be made according to the position thereon. 13.     Meanwhile, in 2012 the problem of late payments in lieu of apartments was raised by the Ombudsman, who sent an official letter to the Prime Minister. In her letter of 5 June 2012 the Ombudsman noted that in 2006 the payments had been made to forty-seven individuals, in 2007 to seventy-three. In 2008 and in 2010 the payment had been made twice and in the years 2009, 2011 and 2012 no payments had been recorded. 14 .     The Ombudsman also noted that one of the retired officers with a place far down the waiting list had lodged a civil claim with a court seeking that the court impose on the head of the GPB an obligation to enter into a contract with him and make the relevant payment. According to the information contained in the Ombudsman’s letter, on 3 September 2009 the Warsaw Regional Court found the claim premature in view of the officer’s place on the waiting list. 15.     On 16 August 2012 the Government’s Legislative Centre replied to the Ombudsman, stating, among other things, that the payments in question were being made according to the financial means at the Government’s disposal. B.     Relevant domestic law and practice 16.     Section 76(1) of the GPB Act provides as follows: “[A GPB] officer has the right to an apartment in the place in which he or she is exercising his or her duties or in a place situated not farther than 100 kilometres from that place, taking into account family size and his or her rights under separate provisions.” 17.     Section 83 of that Act provides, in so far as relevant, as follows: “1. The right to apartment is realised by: 1) the granting of an apartment; 2) payment of the pecuniary equivalent in return for waiving rights to an apartment. 2. The pecuniary equivalent is paid on the basis of a contract concluded between the head of the Government Protection Bureau and the person concerned.” 18 .     Article 64 of the Civil Codes provides as follows: “A final decision of the court stating a duty of a given person to make a specified declaration of will, shall replace that declaration.” COMPLAINTS 19.     The applicant complains under Articles 6 and 14 of the Convention of the continuous failure on the part of the Polish authorities to pay him the allowance which he was guaranteed by law. T HE LAW 20.     The applicant considers that the failure to pay him the equivalent of the apartment to which he was entitled amounted to a violation of Articles   6 and 14 of the Convention. In so far as relevant, Article 6 reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 14 states: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 21.     The applicant submitted that he had not made use of any domestic remedies, because, according to his knowledge, there were no effective remedies available in his case. In this connection he submitted that another unspecified officer had lodged a civil claim with the Warsaw Regional Court seeking that an obligation be imposed on the head of the GPB to conclude a contract of payment for the equivalent of an apartment. According to the applicant’s submissions, on 3   September 2009 the Warsaw Regional Court had dismissed the claim as premature finding that the plaintiff had been placed far down the waiting list. This information had been confirmed in the letter of the Ombudsman of 5 June 2012 (see paragraph 14 above). The applicant failed to provide the Court with a copy of the Regional Court’s judgment. It is also not known whether that judgment had been appealed against. 22.     In these circumstances the Court has to examine whether the applicant had at his disposal an effective domestic remedy which he should have exhausted before lodging his application before it. 23.     In this context the Court reiterates that it is primordial that the machinery of protection established by   the   Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it   is   to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of   domestic remedies is therefore an indispensable part of the functioning of   this system of protection. States are dispensed from answering before an   international body for their acts before they have had an opportunity to   put matters right through their own legal system and those who wish to   invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by   the   national legal system (see Łatak v. Poland (dec.), no.   52070/08, § 75, 12 October 2010; Demopoulos and Others v. Turkey (dec.) [GC], no. 46113/99, §   69, ECHR 2010; and Akdivar and Others v.   Turkey , 16   September 1996, § 65, Reports of Judgments and Decisions 1996-IV). 24.     The Court further reiterates that the rule of exhaustion of domestic remedies contained in   Article   35   § 1 of the Convention requires that normal recourse should be   had by an applicant to remedies which are available and sufficient to   afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and   effectiveness (see Demopoulos and Others, cited above, §   70). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Sejdovic v. Italy [CG], no.   56581/00, § 45, ECHR 2006-II; Sardinas Albo v. Italy (dec.), no.   56271/00, ECHR 2004-I; Akdivar and Others , cited above, § 71). 25.     In this connection the Court notes that it was not the applicant who lodged the claim with the civil court but another unspecified officer. What is more, the applicant failed to submit a copy of the Regional Court’s decision dismissing the claim or to inform the Court whether that judgment had been appealed against and with what result. He submitted only that in his view it would have been pointless for each of the officers entitled to the payment to lodge a separate claim with the civil courts since it had been confirmed by the 2009 decision issued by the Warsaw Regional Court that their claims would not be granted. 26.     The Court does not share the applicant’s view. It notes in this connection that Article 64 of the Civil Code provides that a final decision of the court stating a duty of a given person to make a specified declaration of will, replaces that declaration (see paragraph 18 above). The applicant could and still can lodge an action with a civil court to order the head of the GPB to conclude with him a contract for the payment in question. The fact that this remedy has proved unsuccessful in a case of one claim lodged in 2009 does not mean that the applicant’s claim lodged on the same legal basis would not have any prospect of success. The Court is of the view that the applicant should have attempted to make use of that remedy and exhaust all available appeals before bringing his case before it. 27.     Accordingly, the application must be rejected under Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 30 March 2017.   Andrea Tamietti   Nona Tsotsoria Deputy Registrar   President