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1. The author of the
communication, dated 31 March 1993, is Wieslaw Kall, a Polish citizen,
residing in Herby, Poland. He claims to be a victim of a violation of
articles 2, paragraph 1, and 25 (c) of the International Covenant on Civil
and Political Rights. The Covenant entered into force for Poland on 18 March
1977. The Optional Protocol entered into force for Poland on 7 February
1992.
FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author was employed in various positions in the Civic Militia of the
Ministry of Internal Affairs for 19 years, and from 1982 to 1990 as a cadre
officer of the political and educational section, at the senior inspector
level. He stresses that the Civic Militia was not identical with the
Security Police, and that he never wore the uniform of the Security Police
but only that of the Civic Militia. On 2 July 1990, he was retroactively
reclassified as a security police officer, and on 31 July 1990, he was
dismissed from his post, pursuant to the 1990 Protection of State Office
Act, which dissolved the Security Police and replaced it by a new
department.
2.2 Under the Act, a special Committee was established to decide on the
applications of former members of the Security Police for positions with the
new department. The author claims that he should not have been subjected to
"verification" proceedings, because he had never been a security officer. In
view of his leftist opinions and membership in the Polish United Workers'
Party, his application was dismissed by the Provincial Qualifying Committee
in Czestochowa. The Committee considered that the author did not meet the
requirements stipulated for officers of the Ministry of Internal Affairs.
The author appealed to the Central Qualifying Committee in Warsaw, which
quashed the decision, on 21 September 1990, and held that the author could
apply for employment within the Ministry of Internal Affairs.
2.3 The author's subsequent application for re-employment at the Provincial
Police in Czestochowa, however, was rejected on 24 October 1990. The author
then complained to the Minister of Internal Affairs by letter of 11 March
1991. The Minister replied that the author had lawfully been dismissed from
service, in the context of the reorganization of the department. In this
connection, the Minister referred to regulation No. 53 of 2 July 1990,
according to which officers who performed service on the Political and
Educational Board were considered to be members of the Security Police.
2.4 On 16 December 1991, the author applied to the Administrative Court
alleging unjustified dismissal and error in subjecting him to verification
proceedings. On 6 March 1992, the Court dismissed his application,
considering that it was not within its competence to hear appeals from
Provincial Qualifying Committees.
THE COMPLAINT
3. The author claims that he was dismissed without justification. He claims
that his reclassification as a member of the Security Police was only
implemented to facilitate his dismissal, as the law did not stipulate the
termination of contracts of officers working in the Civic Militia. Moreover,
he claims that he was subsequently denied access to public service only
because of his political opinions, since he has been an active member of the
Polish United Workers' Party and refused to hand back his membership card
during the period of political changes within the Ministry. He claims that
this constitutes discrimination in contravention of article 25 (c) of the
Covenant.
THE COMMITTEE'S ADMISSIBILITY DECISION
4. On 25 October 1993, the communication was transmitted to the State party
under rule 91 of the rules of procedure of the Human Rights Committee. No
submission under rule 91 was received from the State party, despite a
reminder addressed to it on 7 December 1994. By letter of 11 May 1995, the
author confirmed that his situation remains unchanged.
5.1 At its fifty-fourth session, the Committee considered the admissibility
of the communication. The Committee noted with regret the State party's
failure to provide information and observations on the question of the
admissibility of the communication.
5.2 As required by article 5, paragraph 2 (a), of the Optional Protocol, the
Committee ascertained that the same matter was not being examined under
another procedure of international investigation or settlement. With respect
to the exhaustion of domestic remedies, the Committee found that the author
met the requirements of article 5, paragraph 2 (b), of the Optional
Protocol.
5.3 The Committee observed that the author alleged that he was denied
access, on general terms of equality, to public service in his country, a
claim which is admissible ratione materiae, in particular under article 25
(c) of the Covenant.
6. On 5 July 1995, the Human Rights Committee declared the communication
admissible.
STATE PARTY'S SUBMISSION AND THE AUTHOR'S COMMENTS THEREON
7.1 By submission of 11 March 1996, the State party apologizes for its
failure to provide observations in time on the admissibility of the
communication. According to the State party, the delay was attributable to
extensive consultations concerning the matter. The State party undertakes to
cooperate fully with the Committee in the consideration of communications
submitted under the Optional Protocol.
7.2 The State party provides information concerning the legal background of
the facts of the communication. It explains that, following profound
political transformation towards restoring representative democracy, it was
necessary to reorganize the Ministry of Internal Affairs, in particular its
political service sector. Parliament thus adopted a Police Act and a
Protection of State Office Act, both of 6 April 1990. The Protection of
State Office Act provided for the dissolution of the Security Police and the
ex lege dismissal of its officers. The Police Act provided for the
dissolution of the Civic Militia, but provided that its officers became ex
lege officials of the Police. However, article 149 (2) makes exception for
those Militia officers who until 31 July 1989 were Security Police officers
posted in the Militia. These officers were ex lege dismissed from their
post. The changes became effective on 1 August 1990.
7.3 Under article 132 (2) of the Protection of State Office Act, the Council
of Ministers issued ordinance No. 69 of 21 May 1990, providing for
"verification proceedings" of the ex lege dismissed officers before a
Qualifying Committee. An appeal was provided from negative assessments by
the Regional Qualifying Committees to the Central Qualifying Committee. Upon
application, the Committees examined whether the applicant fulfilled the
requirements for officers of the Ministry of Internal Affairs as well as
whether (s)he was a person of a high moral character. Those positively
assessed were free to apply for a post within the Ministry. According to the
State party, 10,349 of the former Security Police officers who applied for
verification were positively assessed, while 3,595 received a negative
assessment. The State party explains that the reorganization of the Ministry
led to a substantial reduction of posts and a positive verification
assessment was merely a condition necessary to apply for employment but did
not guarantee placement.
7.4 On 2 July 1990, the Minister of Internal Affairs issued an order
confirming which categories of posts were recognized as forming part of the
Security Police. According to the order, officers employed until 31 July
1989 on posts of, inter alia, Head and Deputy Head of the Political and
Educational Board were considered officers of the Security Police.
7.5 The State party further points out that employment under the Police Act
and the Protection of the State Office Act is not regulated by the Labour
Code, but by the Code of Administrative Procedure, an appointment being
based on a special nomination and not on a labour contract. Interested
parties can thus appeal decisions concerning their employment to the higher
administrative authority. A decision on either admission or non-admission to
the service of the Ministry of Internal Affairs may be appealed in highest
instance to the High Administrative Court.
8.1 As regards the author's case, the State party points out that he started
his public service in September 1971 in the Civic Militia, attended the
Militia College from 1972 to 1977 and then served at the Regional Militia
Headquarters at Czestochowa. On 16 January 1982, he became Deputy Head of
the Regional Office of Internal Affairs in Lubliniec, responsible for the
Political and Educational Board. Since 1 February 1990 he had served as
senior inspector at the Regional Office of Internal Affairs at Czestochowa.
8.2 On 17 July 1990, the author submitted his application to the Regional
Qualifying Board in Czestochowa with a request for employment in the police.
According to the State party, this already shows that the author considered
himself a Security Police officer, since if he had just been a member of the
militia he would have had his employment automatically extended. The
Regional Qualifying Committee issued a negative assessment of the author's
case. However, on appeal, the Central Qualifying Committee quashed the
assessment and stated that the author was eligible for employment in the
Police or in other units of the Ministry of Internal Affairs.
8.3 Consequently, on 3 October 1990, the author submitted his application
for employment to the Regional Police Headquarters in Czestochowa. On 24
October 1990, the Regional Police Commander informed him that "he did not
avail himself" of his employment offer. The State party points out that the
author could have appealed this refusal to nominate him to the Police Chief
Commander. The author failed to do so, but instead, on 11 March 1991,
complained to the Minister of Internal Affairs that he had been unjustly
subjected to the "verification procedure". The Minister replied that the
procedure had been legal and that his dismissal could not be reviewed.
Further, on 16 December 1991, the author complained to the High
Administrative Court to request a change of the assessment done by the
Regional Qualifying Committee. On 6 March 1992, the Court rejected the
author's claim, since it was incompetent to hear complaints against the
Qualifying Committees as they were not administrative organs.
9.1 The State party requests the Committee to reconsider its decision
declaring the communication admissible. The State party submits that the
Covenant entered into force for Poland on 18 March 1977 and its Optional
Protocol on 7 February 1992 and thus contends that the Committee can only
consider communications concerning alleged violations of human rights which
occurred after the Protocol's entry into force for Poland. Since the
author's verification procedure was terminated on 21 September 1990 with the
decision by the Central Qualifying Committee that he was eligible for
employment in the Ministry, and the author was refused employment on 24
October 1990, the State party argues that his communication is inadmissible
ratione temporis. In this connection, the State party explains that the
author could have appealed the refusal of employment within 14 days to a
higher authority. Since he failed to do so, the decision of 24 October 1990
became final. The State party argues that the author's complaints to the
Minister and to the High Administrative Court should not be taken into
account, since they were not legal remedies to be exhausted.
9.2 The State party is of the opinion that there is no reason in the present
case to resort to retroactive application of the Optional Protocol, as
elaborated by the Committee's jurisprudence. The State party denies that the
alleged violations have a continuing character, and refers to the
Committee's decision in communication No. 520/1992 E. and A.K. v. Hungary,
declared inadmissible on 7 April 1994. that a continuing violation is to be
interpreted as an affirmation, after the entry into force of the Optional
Protocol, by act or clear implication, of the previous violations of the
State party.
9.3 As regards the exhaustion of domestic remedies, the State party refers
to rule 90 (1) (f) of the Committee's rules of procedure that the Committee
shall ascertain that the individual has exhausted all available domestic
remedies. The State party refers to the legal background to the case and
argues that the remedy available to the author for the refusal of employment
was an appeal to the Police Chief Commander and, if necessary, subsequently
to the High Administrative Court. The author chose not to avail himself of
these remedies and instead submitted a complaint to the Minister of Internal
Affairs. According to the State party, this complaint cannot be considered a
remedy, since it did not concern the refusal of employment, but the
qualifying procedure. Similarly, the appeal to the High Administrative Court
concerning the qualification by the Regional Qualifying Committee was not
the proper remedy to be exhausted by the author. The State party therefore
argues that the communication is inadmissible for non-exhaustion of domestic
remedies.
10.1 As regards the merits of the communication, the State party notes that
the author claims that he was groundlessly denied employment in the new
Police and that his classification as a former Security Police officer was
but a pretext to dismiss him on the ground of his political opinions. The
State party contends that the author has not substantiated that his party
membership and political opinions were the reason for his dismissal or his
denial of employment. The State party refers to the applicable legislation
and notes that the author was dismissed ex lege from his post together with
others holding similar posts. The State party emphasizes that it was a
lawful and legitimate decision of Parliament to dissolve the Security
Police. It adds that the Minister's order of 2 July 1990 was no more than a
specification of posts required under the legislation, and did not change
the existing classification of posts.
10.2 The State party explains that both the Security Police and the Civic
Militia were part of the Ministry of Internal Affairs. According to the
State party, at regional and district levels of the administration for
internal affairs special sections of the Security Police existed headed by
an officer with rank of Deputy Head of Regional or District Office for
Internal Affairs. The author held a post of Deputy Head of the Regional
Office of Internal Affairs responsible for the Political and Educational
Board. According to the State party, there is no doubt that this post was a
component part of the Security Police. The Protection of State Office Act
was thus correctly applied to him and consequently the author lost his post
ex lege. The State party adds that the type of education or the uniform worn
by officers are not decisive for their classification.
10.3 As regards the refusal to re-employ the author in the Police, the State
party argues that decisions regarding employment remain largely within the
discretion and appreciation of the employer. Further, the employer is
dependent on the number of available vacant posts. The State party refers to
the travaux preparatoires of article 25 (c) and notes that its intention was
to prevent the monopolization of the State apparatus by privileged groups,
but that it was agreed that States must have possibilities of establishing
certain criteria of admitting its citizens to public service. The State
party points out that in dissolving the Security Police, ethical and
political reasons played a role. In this connection, it refers to the view
expressed by the Committee of Experts of the Council of Europe that the
selection of public servants for key administrative positions could be made
according to political aspects.
10.4 The State party further notes that the rights in article 25 are not
absolute, but allow reasonable restrictions compatible with the purpose of
the law. The State party is of the opinion that organizational changes in
the Police and the Protection of State Office, combined with the number of
available posts, sufficiently justifies the reasons for denying the author
employment in the Police. Moreover, the State party argues that article 25
(c) does not oblige the State to guarantee a post in public service. In the
State party's view, the article obliges States to establish transparent
guarantees, especially of a procedural nature, for equal opportunities of
access to public service. The State party submits that Polish law has
established these guarantees, as outlined above. The State party contends
therefore that the author's right under article 25 (c) has not been
violated.
11.1 In his reply to the State party's submission, the author reiterates
that he has never been a member of the Security Police but that he has
always served in the structures of the Civic Militia. He maintains that
there is no order in his personal file to show that he became a member of
the Security Police. In the author's opinion the Minister's Order of 2 July
1990 was arbitrary and retroactively classified him as a Security Police
officer. In this connection, the author points out that according to the
circular of the Ministry of Internal Affairs, before the Order of 2 July
1990, the following posts were considered to belong to the Security Police:
all those in Departments I and II, the Security Police staff operations
group, Ministry advisers, intelligence and counter-intelligence secretariat,
Deputy Chiefs of Provincial Security Police, and Chiefs and Senior
Specialists for the Security Police in the Provincial Offices of the
Ministry of Internal Affairs. The author submits that it is clear from this
that his post was not part of the Security Police.
11.2 The author refers to a report from the Ombudsman of 1993, where the
Ombudsman found that the retroactive classification of officers as members
of the Security Police had been illegal. He also refers to remarks made by
Members of Parliament in 1996, that it had been a mistake if militiamen who
had never been members of the Security Police had been forced to undergo the
verification procedures.
11.3 The author does not challenge the State party's assertion that the
Security Police was abolished lawfully. However, he claims that the
verification procedures established by the Act and by the Minister's order
were illegal and arbitrary.
11.4 As regards the exhaustion of domestic remedies, the author states that
until now he has not received any legally binding documents which would
ascertain on what grounds he was dismissed from service. He did not receive
a dismissal order, nor was he instructed about the possibilities of appeal.
He states that he submitted a complaint to the Minister of Internal Affairs,
because he did not know to whom to turn, and expected the Minister to
redirect his complaint to the appropriate authority, pursuant to article 65
of the Code of Administrative Proceedings. He further submits that he
complained to the High Administrative Court as soon as he learned from the
press that such a recourse was possible. Because of lack of legal advice,
however, he filed the complaint against the Qualifying Committee's decision,
not against the refusal to employ him.
11.5 As regards the verification procedure, the author states that he was
given the choice between participating in it or being dismissed. He contests
that by submitting himself to the verification procedure he showed that he
considered himself a Security Police member. In this connection, he points
out that on the form, where it said "application by a former Security Police
functionary", he crossed out the words "Security Police" and replaced them
with "Civic Militia".
11.6 As to the merits, the author states that he is convinced that if he had
been a good Catholic, he would certainly be a police officer now. Since he
was considered eligible by the Central Qualifying Committee, he does not see
why he was not offered a job with the Police, if not for his service in the
communist party and his political opinions. In this context, he states that
a colleague was recommended by the Bishop of Czestochowa to the position of
Police Regional Commander and was accepted.
REVIEW OF ADMISSIBILITY
12. The Committee notes the State party's claim that the communication is
inadmissible ratione temporis and also for non-exhaustion of domestic
remedies. The Committee has examined the relevant information made available
by the State party. However, the Committee has also examined the information
submitted by the author in this respect and concludes that the facts and
arguments as advanced by the State party in support of its claim do not
justify the revision of the Committee's decision on admissibility.
EXAMINATION OF THE MERITS
13.1 The question before the Committee is whether the author's dismissal,
the verification proceedings and the subsequent failure to employ him in the
Police Force violated his rights under article 25 (c) of the Covenant.
13.2 The Committee notes that article 25 (c) provides every citizen with the
right and the opportunity, without any distinctions based on race, colour,
sex, language, religion, political or other opinion, national or social
origin, property, birth or other status, and without unreasonable
restrictions to have access, on general terms of equality, to public service
in his country. The Committee further observes, however, that this right
does not entitle every citizen to obtain guaranteed employment in the public
service.
13.3 The Committee notes that the author has claimed that he was unlawfully
dismissed, since he was not a member of the Security Police. The Committee
observes, however, that the author was retroactively reclassified as a
Security Police officer on 2 July 1990; it was as a consequence of the
dissolution of the Security Police effected by the Protection of State
Office Act that the author's post as Security Police officer was eliminated,
resulting in his dismissal on 31 July 1990. The Committee notes that the
author was not singled out for retroactive reclassification of his post, but
that posts of others in positions similar to the author in different
regional districts were also retroactively reclassified in the same manner.
The reclassification was part of a process of comprehensive reorganization
of the Ministry of Internal Affairs, with a view to restoring democracy and
the rule of law in the country.
13.4 The Committee notes that the termination of the author's post was the
result of the dissolution of the Security Police by the Protection of State
Office Act and by reason of the dissolution of the Security Police, the
posts of all members of the Security Police were abolished without
distinction or differentiation.
13.5 Moreover, as regards the author's complaint about the verification
procedure to which he was subjected, the Committee notes that, on appeal,
the author was found to be eligible for a post in the Police. Thus, the
facts reveal that the author was not precluded from access to the public
service at that stage.
13.6 The question remains whether the fact that the author was not given a
post in the Police constitutes sufficient evidence to conclude that he was
refused because of his political opinions or whether said refusal was a
consequence of the limited number of posts available. As reflected above,
article 25 (c) does not entitle every citizen to employment within the
public service, but to access on general terms of equality. The information
before the Committee does not sustain a finding that this right was violated
in the author's case.
14. The Committee concludes that the facts before it do not disclose a
violation of any of the provisions of the Covenant.
INDIVIDUAL OPINION BY COMMITTEE MEMBERS ELIZABETH EVATT AND CECILIA MEDINA
QUIROGA, COSIGNED BY CHRISTINE CHANET (DISSENTING)
In this case, the author has argued a violation of article 25 (c) of the
Covenant because he was unreasonably dismissed from the Civic Militia. The
Committee has found that the State did not violate the Covenant. We cannot
agree with this finding on the basis of the following facts and reasons:
1. A Polish law of 6 April 1990 dissolved the Security Police and de lege
dismissed all its members. It is a fact that the dissolution of the Security
Police was made because of ethical and political reasons, as stated by the
State itself (para. 10.3). This law did not affect the author, since he was
not a member of the Security Police.
By further Ordinance No. 69 of 21 May 1990 all members of the dissolved
Security Police were subjected to a process of verification which, if
approved, would enable them to apply for new jobs in units of the Ministry
of Internal Affairs.
A subsequent Order of 2 July 1990 of the Minister of Internal Affairs gave a
list of positions which would be considered to belong to the Security
Police, among which the author's position was found. There was no domestic
remedy to appeal that order (para. 8.3).
2. The State argues that the author was dismissed from his post ex lege,
since there was no doubt that the author's post was a component part of the
Security Police (paras. 10.1 and 10.2). However, the law was not enough to
dismiss the author from his post, as a further Ministerial Order was needed.
It is hardly conceivable, thus, that there was no doubt that the author
belonged to the Security Police, what leads us to conclude that the author
was not dismissed from his post ex lege.
This being the case, we must start from the premise that the author was
dismissed by the Ministerial Order of 2 July 1990, and consequently it has
to be examined whether the classification of the author s position as part
of the Security Police was both a necessary and proportionate means for
securing a legitimate objective, namely the re/establishment of internal law
enforcement services free of the influence of the former regime, as the
State party claims, or whether it was unlawful or arbitrary and or
discriminatory, as the author claims. It is clear from the mere enunciation
of the issue that there is a significant issue here, arising under article
25 (c) and that it was a question the author should have been able to raise
through the exercise of a remedy allowing him to challenge the Order.
3. This leads to the examination of whether article 2.3 of the Covenant was
complied with by Poland with regard to the author. Under article 2.3 of the
Covenant States parties undertake to ensure that any person whose rights are
violated shall have an effective remedy for that violation. The Committee
has taken the view so far that this article cannot be found to have been
violated by a State unless a corresponding violation of another right under
the Covenant has been determined. We do not think this is the proper way to
read article 2.3.
It has to be taken into account that article 2 is not directed to the
Committee, but to the States; it spells out the obligations the States
undertake to ensure that rights are enjoyed by the people under their
jurisdiction. Read that way it does not seem to make sense that the Covenant
should tell the States parties that only when the Committee has found that a
violation has occurred they should have provided for a remedy. This
interpretation of article 2.3 would render it useless. What article 2
intends is to set forth that whenever a human right recognized by the
Covenant is affected by the action of a State agent there must be a
procedure established by the State allowing the person whose right has been
affected to claim before a competent body that there has been a violation.
This interpretation is in accordance with the whole rationale underlying the
Covenant, namely that it is for the States parties thereto to implement the
Covenant and to provide suitable ways to remedy possible violations
committed by States organs. It is a basic principle of international law
that international supervision only comes into play when the State has
failed in its duty to comply with its international obligations.
Consequently, since the author had no possibility to have his claim heard
that he had been dismissed arbitrarily and on the basis of political
considerations, a claim which on the face of it raised an issue on the
merits, we are of the opinion that in this case his rights under article 2,
paragraph 3, were violated.
Elizabeth Evatt [signed]
Cecilia Medina Quiroga [signed]
Christine Chanet [signed] |
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