AS TO THE ADMISSIBILITY OF
by Lucjan Roman LISS
The European Court of Human Rights (Fourth Section), sitting on 16 March 2010 as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 5 February 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the Polish Government,
Having deliberated, decides as follows:
The applicant, Mr Lucjan Roman Liss, is a Polish national (formerly a German national) who was born in 1950 and lives in Bergkamen. He was represented before the Court by Mr Joachim J. Lassonczyk, a lawyer practising in Hamm. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. Events before 10 October 1994
In the 1972 Olympic Games in Munich the applicant won a silver medal in cycling, representing Poland.
In 1977 the applicant developed kidney trouble and went to West Germany to undergo dialysis and a kidney transplant. According to the applicant’s submissions, such treatment was not available in Poland at that time.
In 1980 he had his first transplant.
Also in 1980 the applicant’s mother died and the applicant was granted a single-entry visa to Poland on an exceptional basis.
In 1986 the applicant waived his Polish citizenship and became a German national.
B. Events after 10 October 1994
In 1995 the applicant underwent another kidney transplant in Germany.
On 4 February 2000 the applicant requested the Polish President of the Office for Physical Education and Sport (Prezes Urzędu Kultury Fizycznej i Sportu) to grant him a special payment provided for Olympians.
On 16 March 2000 the President of the Office for Physical Education and Sport refused his request on the ground that he was not a Polish national and did not have his permanent place of residence in Poland as required by the relevant law.
On 8 April 2000 the applicant lodged a request for reconsideration of that decision.
On 12 May 2000 the President of the Office for Physical Education and Sport confirmed his decision of 16 March 2000.
The applicant appealed to the Supreme Administrative Court (Naczelny Sąd Administracyjny).
On 6 December 2000 the Supreme Administrative Court dismissed the applicant’s complaint. The court found that the applicant had not satisfied two of the five conditions listed in section 28a of the Act of 18 January 1996 on Physical Education (ustawa o kulturze fizycznej) (“the 1996 Act”), namely he was not a Polish national and did not have his place of residence in Poland. Accordingly, the court found that the challenged decision had been given in accordance with the law and that the applicant’s complaint therefore had to be dismissed.
In 2003 the applicant requested the relevant Polish authorities to grant him Polish citizenship.
On 11 February 2004 the President of the Republic of Poland granted the applicant Polish citizenship.
On 1 September 2005 the Professional Sports Act (Ustawa o sporcie kwalifikowanym) of 29 July 2005 entered into force. The new law replaced the condition of a permanent place of residence in Poland by a requirement of having a permanent place of residence on the territory of Poland or another member State of the European Union.
On 17 January 2006 the Minister of Sport (Minister Sportu) gave a decision and granted the applicant the special payment provided for Olympians in the amount of 2,477.23 Polish zlotys (PLN) monthly, finding that the applicant had fulfilled all the requirements listed in the new law.
C. Relevant domestic law and practice
1. Special payment for Olympians
At the relevant time the issue of special payment for Olympians was regulated by the Law on Physical Education of 18 January 1996 (“the 1996 Act”) (”Ustawa o kulturze fizycznej”). Section 28 a as introduced into “the 1996 Act” by the Law of 4 November 1999 on amendment to the Law on Physical Education (“Ustawa o zmianie ustawy o kulturze fizycznej”) with effect from 1 January 2000, provided, in so far as relevant:
“Representatives of Poland in the Summer or Winter Olympic Games, who:
1) have won at least one Olympic medal,
2) are at least thirty-five years of age and do not take part in competitive sports,
3) have Polish citizenship,
4) have their permanent place of residence on the territory of Poland,
5) have not been convicted of an intentional offence
- are entitled to payments from the State Treasury.”
On 1 September 2005 the 1996 Act was amended and the provisions on special payments for Olympians were incorporated in the new Professional Sports Act of 29 July 2005 (ustawa o sporcie kwalifikowanym). The relevant amendment, which entered into force on 1 September 2005, broadened the range of persons entitled to the special payment by including those who had their permanent place of residence either in Poland or in another EU member State. The criterion of Polish nationality remained.
2. The individual constitutional complaint
Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
3. Reopening of the administrative proceedings in consequence of the judgment of the Constitutional Court’s judgment ruling on a constitutional complaint
At the relevant time Article 58 of the Act of 11 May 1995 on the Supreme Administrative Court (Ustawa o Naczelnym Sądzie Administracyjnym) provided that in cases terminated by a final judgment of the court the proceedings might be reopened at the request of a party to the proceedings or ex officio...
According to Article 59 of that Act provisions of the Code of Civil Procedure applied respectively to the proceedings before the Supreme Administrative Court.
Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution.
The applicant alleged that the refusal to pay him the special payment provided for Olympians amounted to a violation of his right to peaceful enjoyment of property. He also alleged a breach of Article 14 of the Convention, claiming that the refusal in question, being based on criteria of nationality and place of residence, had been discriminatory.
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No 1.
The applicant complained that the failure to grant him a special payment for Olympians based on the grounds that he was not a Polish citizen and that he did not have a place of permanent residence in Poland breached Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention.
Article 1 of Protocol No. 1 states:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 14 of the Convention reads as follows:
“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.”
1. The parties’ submissions
(a) The Government’s objection on the application’s incompatibility ratione personae with the Convention
The Government submitted that the applicant could no longer be considered a victim of a violation of his Convention rights. To this end the Government submitted that following the amendment to the relevant domestic law in respect of the permanent place of residence and having acquired Polish citizenship, by a decision of the Minister of Sport of 17 January 2006, the applicant had been granted the special payment for Olympians. Therefore the dispute between the applicant and the Polish Government should be considered as settled on the domestic level and there was no justification for pursuing the present application before the Court.
(b) The Government’s objection based on non exhaustion of domestic remedies
The Government further submitted that the present application should be declared inadmissible for the applicant’s failure to exhaust all available domestic remedies. They referred to the possibility of lodging a constitutional complaint with the Constitutional Court alleging unconstitutionality of section 28 a of the 1996 Act, which had served as a basis for the refusal to grant the applicant the payment in question.
(c) The applicant
The applicant considered that the fact he had been granted the payment in question in January 2006 did not deprive him of victim status. He maintained that from the date the payment was introduced into the Polish legal system, until 17 January 2006 when the payment was granted to him, he had been deprived of social benefits and that this deprivation had been based on discriminatory grounds.
As regards the Government’s preliminary objection concerning non exhaustion of domestic remedies, the applicant likewise contested that argument. He submitted that he had appealed to the Supreme Administrative Court and had thus exhausted all available domestic remedies. He further maintained that a constitutional complaint would not be an adequate remedy and could not provide him with adequate redress.
2. The Court’s assessment
(a) As regards the Government’s preliminary objection that the applicant was not a victim
The Court notes that on 17 January 2006 the applicant was granted the payment in question. However, from 1 January 2000 to 17 January 2006, that is for over six years, he did not receive the special payment. He was not granted a retroactive payment for that period. Therefore he can still be considered a victim of an alleged violation of the Convention in the period in which he was not entitled to the payment in question.
It follows that the Government’s plea of inadmissibility based on the incompatibility of the application ratione personae must be dismissed.
(b) As regards the Government’s preliminary objection based on non exhaustion of domestic remedies
The Court has to determine whether the specific remedy invoked by the Government could be considered effective in the circumstances of the present case. It reiterates that the only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and which at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory
but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999-V).
The Court reiterates that it has already dealt with the question of the effectiveness of a constitutional complaint in Poland (see Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; subsequently Pachla v. Poland (dec.), no. 8812/02, 8 November 2005; Więcek v. Poland (dec.), no. 19795/02, 17 January 2006; and Tereba v. Poland (dec.), no. 30263/04, 21 November 2006). It examined its characteristics and in particular found that the constitutional complaint was an effective remedy for the purposes of Article 35 § 1 of the Convention in situations where: 1) the individual decision which allegedly violated the Convention, had been adopted in direct application of an unconstitutional provision of national legislation; and 2) procedural regulations applicable to the revision of such individual decisions provided for the reopening of the case or the quashing of the final decision in consequence of the judgment of the Constitutional Court in which unconstitutionality had been found. Consequently, the Court found that the exhaustion of the procedure of the constitutional complaint should be required under Article 35 § 1 of the Convention in situations in which both above-mentioned requirements had been met.
The Court notes that in the applicant’s case the refusal to grant the applicant the special payment for Olympians was based on section 28 a of the 1996 Act and the final judgment was given by the Supreme Administrative Court on 6 December 2000. The Court further notes that at the relevant time the provisions of the Supreme Administrative Court Act, by referring to the relevant provisions of the Code of Civil Procedure, provided for the reopening of proceedings in consequence of a judgment of the Constitutional Court in which unconstitutionality had been found (see above). Both requirements referred to in the Szott-Medyńska decision had been met in the applicant’s case.
Consequently, the Court finds that by failing to lodge a constitutional complaint against section 28 a of the 1996 Act, the applicant failed to exhaust the remedy provided for by Polish law. The Government’s objection that the constitutional complaint was not employed by the applicant in the instant case is therefore well-founded.
It follows that the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
Declares the application inadmissible.
Lawrence Early Nicolas Bratza