SKORKIEWICZ v. POLAND
Inadmissible
Nicolas Bratza
The applicant, a Polish citizen born in 1928, is retired and resides in Sosnowiec. The facts of the case as submitted by the applicant may be summarised as follows: In May 1993 the Veterans and Persecuted Persons Office (Urząd do Spraw Kombatantów i Osób Represjonowanych) informed the applicant that the Office had instituted ex officio proceedings pursuant to the February 1991 Act on Veterans and Persecuted Persons (“the 1991 Act”) during the post-war period in order to verify whether under this legislation the applicant was entitled to retain his veteran status. The applicant was requested to furnish information relating to the grounds on which he had acquired this status in accordance with the provisions of the 1982 Veterans Act (“the 1982 Act”). By a letter of 7 June 1993 the applicant informed the Office that during the Second World War he had participated in the activities of the Polish underground Home Army (Armia Krajowa), that during his service in the Civil Militia (Milicja Obywatelska) in Sosnowiec in 1945 he had been carrying out normal police duties such as maintaining public order, and that he had participated in combating the Werwolf, the post-war Nazi underground paramilitary organisation.  By a decision of 2 July 1993 the Director of the Veterans and Persecuted Persons Office divested the applicant of his veteran status. It was established that the applicant had served from 1 February to 30 March 1945 in the former Civil Militia. In his application for admission to the Union of Fighters for Freedom and Democracy, which the applicant had submitted in 1979, he had stated that during his service he had actively participated in the armed struggle by the reactionary underground resistance. In his curriculum vitae which had been attached to this application, the applicant had stated that “immediately after the liberation of Sosnowiec ... I had started my service in the Station III of the Civil Militia in Sosnowiec from where I had been sent to participate in the armed struggle with bands and with the reactionary underground resistance (“natychmiast po wyzwoleniu Sosnowca ... rozpocząłem pracę w III Komisariacie w Sosnowcu, skąd byłem włączony do walk z bandami i reakcyjnym podziemiem”). The applicant had subsequently acquired his veteran status by virtue of a decision of the Union of 7 May 1979, made on the basis of a certificate issued by the Katowice Regional Headquarters of the Civil Militia. This certificate had confirmed that he had been serving therein from 1 February to 30 March 1945 and that throughout this period he had participated in the armed struggle by the reactionary underground resistance forces. The Director considered that the applicant fell within the scope of Article 25 read together with Article 21 of the 1991 Act which provided, inter alia, that persons who had served in the former internal security services were to be divested of their veteran status. As the applicant belonged to the category of persons who, under the applicable legal provisions, were to be deprived of veteran status, the decision was justified and in accordance with the law. The applicant lodged an appeal against this decision. He argued that the decision was unlawful. He emphasised that he had been serving in the Civil Militia for two months and that his participation in fighting armed Nazi groups during the war could not be regarded as a struggle to consolidate people’s power. On 22 April 1994 the Supreme Administrative Court quashed the decision under appeal. The Court considered that the administrative authority had failed to establish all facts relevant for the legal assessment of the applicant’s case in that it had entirely disregarded the contents of the applicant’s letter of 7 June 1993 in which he had stated that he had been involved in the clandestine fight of the Home Army against the German troops occupying Poland and that his service in the Civil Militia had consisted of fighting the Werwolf and of ordinary police functions such as maintaining public order. The Court observed that, under Article 1 item 2 of the 1991 Act, combating the Werwolf was to be regarded as giving rise to veteran status. Thus, the administrative authority had to establish what armed forces had been active near Sosnowiec during the applicant’s service and what had been the armed formations in which the applicant had fought. On 31 May 1995 the Director of the Veterans and Persecuted Persons Office divested the applicant of his veteran status. The administrative authority took into consideration a reply of the Katowice Regional Police Headquarters to its request of 12 April 1995 for detailed information concerning the applicant’s service in the Civil Militia. It had been stated in this reply of 4 May 1995 that it had not transpired from the applicant’s personal file that during his service he had participated in the armed combat of any organisation’s fight for the independence of Poland. Therefore, as the applicant’s veteran status had been awarded to him on the basis of his participation in the struggle to consolidate people’s power (“utrwalanie władzy ludowej”), he had to be divested of this status pursuant to Article 25 item 2 (2) of the 1991 Act. On the same day, 31 May 1995, the Director of the Veterans and Persecuted Persons Office refused to grant the applicant veteran status on the basis of his service in the Home Army (Armia Krajowa) during the Second World War, considering that the documents submitted in support of his claim were wholly inadequate to establish the relevant facts and, consequently, to grant such status (“nie dają absolutnie podstaw do przyznania uprawnień kombatanckich”). The applicant again appealed to the Supreme Administrative Court against both decisions. He submitted that both decisions were unlawful. He argued that he could not reasonably be expected to submit any new evidence relating to his service in the Home Army, and in particular any testimony of living witnesses, given the lapse of time since the relevant events. On 2 December 1996 the Supreme Administrative Court dismissed the applicant’s appeal against the withdrawal of his veteran status on the basis of his service in the Civil Militia. The Court had regard to the fact that the administrative authority, following the Court’s judgment of 22 April 1994, had held an enquiry as to the nature of the applicant’s activities during his service in the Militia in 1945. In the light of the letter of the Katowice Regional Headquarters of 4 May 1994, it could not be established that the applicant had in fact participated in “consolidating the people’s power”. Therefore, the original decision of 1979 bestowing veteran status on the applicant had lacked any sound factual basis. Consequently, the Court concluded that the contested decision divesting the applicant of this status was in conformity with the law. The Court further set aside the decision concerning the refusal to grant veteran status to the applicant in respect of his service in the Home Army and remitted the case for reconsideration by the first-instance authority. The Court considered that the administrative authority, when considering that the evidence submitted by the applicant was “wholly inadequate” for a finding that he had in fact served therein, had significantly overstepped the margin of appreciation applicable in the assessment of evidence, as set out in the relevant provisions of the Code of Administrative Procedure. These proceedings are apparently still pending. Relevant domestic law 1. Veteran status The Law of 24 January 1991 on Veterans and Other Victims of War and Post-War Repression repealed the Law of 26 May 1982 on the Special Status of Veterans. Under the 1982 Act, participation in the armed struggle against the reactionary underground resistance (“walka o utrwalenie władzy ludowej”) gave rise to the entitlement to veteran status. The 1991 Act enacted new criteria on which veteran status can be granted. Pursuant to Article 1 of the 1991 Act, the following persons, inter alia, are entitled to acquire veteran status: a) those having served in the Polish Army (Wojsko Polskie) and in the Polish military formations organised during the Second World War within the Allied armies; b) those having served in the Polish underground resistance organisations, including military formations organised in the framework of these organisations from 1939 to 1945; c) those having served in the Allied armies and in the underground resistance organisations operating in the territories of the Allies in 1939-1945, with the exception of the NKVD and other special organisations acting to the detriment of the Polish nation; d) those having served in the Polish underground military formations and organisations fighting for the independence of Poland within the borders of Poland before 1 September 1939 and within the Polish post-war borders, in the period from the arrival of the Army of the Union of the Socialist Soviet Republics (USSR) on Polish territory until 1956; e) those having served in the armed struggle against the formations of the Ukrainian Uprising Army (UPA) and against the Werwolf. The 1991 Act took away the entitlement to veteran status accorded by virtue of the 1982 Act 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 Public Security Service ("aparat bezpieczeństwa publicznego") was not entitled to acquire veteran status, and those persons who had acquired it, were to be divested of it. The Internal Public Security Service is defined as being the State organs, partly comprising special armed forces and political police, modelled on the NKVD and the KGB, established on 21 July 1944 with a view to combating, suppressing and eliminating groups of political opposition, including the post-war underground resistance against Communism. These organs were also competent to conduct criminal investigations under the rules of criminal procedure. They were, depending on political circumstances, called variously: the "Department of Public Security" (Resort Bezpieczeństwa Publicznego) (July 1944 - January 1945), the "Ministry of Public Security" (Ministerstwo Bezpieczeństwa Publicznego) (January 1945 - December 1954), the "Committee for Public Security" (Komitet do Spraw Bezpieczeństwa Publicznego) (1954-1956) and the "Security Service" (Służba Bezpieczeństwa), i.e. a special department of the Ministry of the Interior (1956-1990). Under the 1982 Act, which was subsequently replaced by the 1991 Act, veteran status gives rise to various special employment 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. Veterans who remain in employment are entitled to ten days' additional paid leave per year. They 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 1991 Act provides that persons who have lost their veteran status which was granted to them on the basis of the 1982 Act, retain the 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 § 4 of the 1991 Act, if a decision is appealed to the Supreme Administrative Court, the rights stemming from the veteran status are suspended until a final judgment is given. 2. The appeal procedure against administrative decisions Article 196 § 1 of the Code of Administrative Procedure, as applicable at the material time, provided that an appeal could be lodged against an administrative decision with the Supreme Administrative Court on the ground that it was not in conformity with the law. Article 207 § 2 stated that the Court could set the decision aside wholly or in part if it established that the decision had been in breach of substantive law, that the proceedings leading to the decision had been flawed with such procedural errors that the decision should be null and void, or if such procedural shortcomings had occurred which would justify a reopening of the proceedings.