LISS v. POLAND
Inadmissible
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
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. 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. 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. 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.” 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.