CASE OF CZYŻ v. POLAND

FOURTH SECTION

CASE OF CZYŻ v. POLAND

(Application no. 21796/05)

JUDGMENT

STRASBOURG

11 February 2014

This judgment is final but it may be subject to editorial revision.

In the case of Czyż v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Ledi Bianku, President,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 21 January 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 21796/05) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Elzbieta Czyż (“the applicant”), on 13 May 2005.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

3. The applicant alleged, in particular, that the ex officio reopening of the social security proceedings concerning her right to an early-retirement pension, which resulted in the quashing of the final decision granting her a right to a pension, was in breach of Article 1 of Protocol No. 1 to the Convention.

4. On 20 May 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1953 and lives in Mielec.

6. The applicant is married and has three children. Prior to her early retirement she had been employed and had paid her social security contributions to the State.

A. Proceedings concerning the grant and the revocation of an EWK pension

7. On 25 October 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.

8. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist doctor on 8 October 2001. The certificate stated that the child (born in 1992) suffered from chronic asthma and that she was in need of her parent’s constant care.

9. On 6 December 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an early retirement pension.

10. The Social Security Board suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision.

11. On 30 June 2002 the applicant’s employment was dissolved by a mutual consent of the parties.

12. Consequently, on 29 July 2002 the Rzeszów Social Security Board decided to start payment of the retirement pension starting from 1 August 2002.

13. On 17 July 2002 the Rzeszów Social Security Board had asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.

14. On 30 July 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant.

15. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. It follows that the applicant was never paid the pension. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early retirement pension under the scheme provided for by the 1989 Ordinance.

16. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.

17. On 29 December 2003 the Rzeszów Regional Court dismissed the applicant’s appeal.

18. The applicant appealed against the first-instance judgment.

19. On 2 June 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she had not satisfied the requirement of necessary permanent care.

20. A professional lawyer, who had been either hired by the applicant or appointed to represent her under a legal-aid scheme, prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf.

21. On 14 December 2004 the Supreme Court refused to examine the cassation appeal.

B. The applicant’s financial situation

22. The applicant’s pension was revoked one day before the planned first payment. It follows that she never received any payment of the granted early retirement.

23. According to the Government’s submissions, after the revocation of her pension, the applicant worked between 16 December 2004 and 31 May 2005 on the basis of a civil law contract. On 31 May 2005 she started working on the basis of an employment contract and she is still working on a permanent basis.

24. The Government also submitted that the applicant’s gross annual income amounted to approx. 39% of the average brut salary in Poland in 2002 (10,063 Polish zlotys [PLN], approx. 2,472 euros [EUR]), 0.41% in 2004 (PLN 112, approx. EUR 25), 27% in 2005 (PLN 7,754, approx. EUR 1,929), 36% in 2006 (PLN 10,739, approx. EUR 2,760), 35% in 2007 (PLN 11,951, approx. EUR 3,162), 40% in 2008 (PLN 14,476, approx. EUR 4,124), 76% in 2009 (PLN 28,471, approx. EUR 6,590) and 77% in 2010 (PLN 7,610, approx. EUR 1,907). In 2003 the applicant had no income.

25. Additionally, on 1 December 2008 the applicant became eligible for an early retirement pension not connected with the state of health of her child. The pension amounted to PLN 1,102 net (approx. EUR 263). It follows that as of 1 December 2008 the applicant’s income consisted of both her salary and the early retirement pension.

26. The applicant submitted that she could not terminate her employment contract earlier than on 30 June 2002 because she had to train a new employee who would replace her at work and because of her financial commitments towards the employer. As regards her financial situation she submitted that the income in the period directly following the revocation of her pension and the following two years was “close to zero”. She also submitted a copy of the decision of 20 December 2004 issued by the Mielec Social Care Centre (Ośrodek Pomocy Społecznej) granting her a social care benefit for persons whose income per family member fell below the statutory threshold; according to the reasoning of the decision the applicant’s family’s income at the relevant time amounted to PLN 934.84 (approx. EUR 206); the income per member of the applicant’s family thus amounted to PLN 186.97 (approx. EUR 41). At the relevant time the threshold which enabled the applicant to claim the social care benefit was PLN 316 (approx. EUR 70) of income per family member.

27. The applicant further submitted two calls for payment addressed to her and issued by the Mielec Housing Cooperative on 18 September 2002 and on 19 May 2005 confirming that she had debt resulting from unpaid rent which amounted to PLN 1,656.65 (approx. EUR 407) and PLN 2,124.86 (approx. EUR 525) respectively.

28. The Government also submitted that the applicant’s husband had worked between 7 May 1999 and 29 March 2004, that her son W.C. had worked between 7 April 2000 and 31 December 2002 and her other son T.C. had worked as an adolescent employee between 1 January 1999 and 30 June 2001 and, subsequently, on the basis of an employment contract as of 18 August 2008.

II. RELEVANT DOMESTIC LAW AND PRACTICE

29. The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of Moskal v. Poland, no. 10373/05, §§ 31–34, 15 September 2009 and Antoni Lewandowski v. Poland, no. 38459/03, §§ 36–43, 2 October 2012).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

30. The applicant complained that divesting her, in the circumstances of the case, of her acquired right to an early-retirement pension amounted to an unjustified deprivation of property. This complaint falls to be examined under Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“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.”

A. Admissibility

1. The Government’s preliminary objections

(a) Non-compliance with the six-month time requirement

(i) The Government

31. The Government argued that the applicant had not complied with the six-month time requirement, as required by Article 35 § 1 of the Convention.

32. They submitted that the final decision in the present case given by the Supreme Court on 14 December 2004 had been served on the applicant on 18 January 2005, the applicant signed her application form on 30 June 2005 and the application form was served on the Court on 29 July 2005. It follows, in the Government’s view, that it is doubtful whether the date entered by the applicant on the form is correct.

33. The applicant submitted that she had complied with the six-month time requirement. She produced a copy of the letter from the Court dated 17 June 2005 which she had received as a reply to her first letter in which she had raised the substance of her complaint.

34. The Court notes that indeed the applicant’s first letter in which she had raised the substance of her complaints was sent by the applicant on 13 May 2005 and served with the Court on 19 May 2005. The final domestic decision was given by the Supreme Court on 14 December 2004 and served on the applicant on 18 January 2005. If follows that less than six months passed between the final domestic decision and lodging of the present application with the Court. Therefore, the Government’s objection as regards non-compliance with the six-month time-limit must be dismissed.

(b) Incompatibility ratione materiae and ratione personae with the Convention

35. The Government further submitted that the present application should be considered incompatible ratione materiae and ratione personae with the Convention because it concerned rights and freedoms which were not guaranteed by the Convention and because the applicant could not claim to be a victim of a violation of the Convention within the meaning of its Article 34.

36. The Court has already examined the Government’s objection as regards the alleged incompatibility ratione materiae of the “EWK” applications and dismissed it (see Moskal, cited above, §§ 38-45). It sees no reason to depart from its previous finding.

37. As regards the Government’s objection concerning the alleged incompatibility ratione personae with the Convention, the Court notes that the “EWK” pension in question had been granted personally to the applicant and that, following the revocation of the pension, the applicant was involved in the judicial proceedings complained of as a party. In any event, the Court has already examined a number of “EWK” applications and found, at the admissibility stage of their examination that they were not manifestly ill-founded or inadmissible on any other grounds (see among many other authorities, Antoni Lewandowski, cited above, §72, Lasota v. Poland, No. 6762/04, § 54, 2 October 2012). It follows that the Government’s objection concerning the inadmissibility ratione personae of the application must be dismissed.

(c) Further preliminary objections

38. The Government also submitted that the applicant should have made an application to the Constitutional Court, challenging the compatibility of the relevant social security provisions with the Constitution. They further argued that the present application constituted an abuse of the right to individual petition.

39. The Court has already examined identical objections regarding non‑exhaustion as regards the applicant’s failure to lodge a constitutional complaint and abuse of the right to individual petition and dismissed them, in the follow‑up cases to Moskal (see, for instance, Antoni Lewandowski, cited above, §§ 54-72, Potok v. Poland, no. 18683/04, §§ 36-44, and Lew v. Poland, no. 34386/04, §§ 56‑62, 4 December 2012). It sees no reason to depart from its previous findings.

2. Conclusion on admissibility

40. The Court also notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

41. The applicant submitted that divesting her, in the circumstances of the case, of her acquired right to an early-retirement pension had amounted to an unjustified deprivation of property.

(b) The Government

42. The Government claimed that the interference with the applicant’s property rights had been lawful and justified. In particular, divesting the applicant of her right to the early-retirement pension had been provided for by law and was in the general interest. There was also a reasonable relationship of proportionality between the interference and the interests pursued.

2. The Court’s assessment

43. The Court notes at the outset that the applicant’s right to early retirement had its basis in the Social Security Board’s final decision of 6 December 2001. The payment was suspended because of the applicant’s employment (see paragraph 10 above). However, as soon as the applicant’s employment contract expired, the retirement right was confirmed again by the Social Security Board’s decision of 29 July 2002 in which the Board decided to start payment of the pension on 1 August 2002 (see paragraph 12 above). The Court considers that the decisions referred to above which granted and confirmed the applicant’s right amounted to “possessions” within the meaning of Article 1 of Protocol No. 1 (see Czajkowska and Others v. Poland, no. 16651/05, §§ 50-51, 13 July 2010). It follows that Article 1 of Protocol No. 1 is applicable in the present case.

(a) General principles

44. The relevant general principles are set out in the Moskal judgment, cited above, paragraphs 49-52. The Court would nevertheless reiterate that any interference by a public authority with the peaceful enjoyment of possessions should be lawful and must pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Moskal, cited above, §§ 49 and 50).

(b) Application of the above principles to the present case

(i) Whether there has been an interference with the applicant’s possessions

45. The parties did not dispute that the decisions of the Rzeszów Social Security Board of 30 July 2002, subsequently validated by two court instances (the regional court and the court of appeal), which deprived the applicant of the right to receive the EWK pension, amounted to an interference with her possessions within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court sees no reason to hold otherwise.

(ii) Lawfulness of the interference and legitimate aim

46. As in the Moskal case the Court considers that this interference was provided for by law and pursued a legitimate aim, as required by Article 1 of Protocol No. 1 to the Convention (see Moskal, cited above, §§ 56, 57 and 61–63 and also Iwaszkiewicz v. Poland, no. 30614/06, §§ 47, 48, 26 July 2011).

(iii) Proportionality

47. In the instant case, a property right was generated by the favourable evaluation of the applicant’s dossier attached to the application for a pension, which was lodged in good faith, and by the Social Security Board’s recognition of the right (see paragraphs 7-9 above).

48. It must be stressed that the delay with which the authorities reviewed the applicant’s dossier was relatively long. The decision of 6 December 2001 was left in force for eight months before the authorities became aware of their error. On the other hand, as soon as the error was discovered the decision to discontinue the payment of the benefit was issued relatively quickly and with immediate effect (see paragraphs 14 and 15 above). Even though the applicant had an opportunity to challenge the Social Security Board’s decision of 30 July 2002 in judicial review proceedings, her right to the pension was eventually determined by the courts almost two and a half years later (see paragraphs 17-21 above).

49. In examining the conformity of these events with the Convention, the Court reiterates the particular importance of the principle of good governance. It requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000 I; Öneryıldız v. Turkey [GC], no. 48939/99, § 128, ECHR 2004 XII; M S.r.l. v. Moldova, no. 21151/04, § 72, 8 April 2008; and Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011). It is desirable that public authorities act with the utmost care, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other such rights. In the present case, the Court considers that having discovered their mistake, the authorities failed in their duty to act speedily and in an appropriate and consistent manner (see Moskal, cited above, § 72).

50. Moreover, in the Court’s opinion, the fact that the applicant was not paid the pension is not decisive for the assessment of proportionality of the interference in her property rights. The right was granted to her by means of a final administrative decision (see paragraph 9 above) and she had the reasonable basis to expect when consenting to the expiration of her employment contract that once the contract expired, the payment of the pension would start. Moreover, the payment was confirmed by the Social Security Board’s decision of 29 July 2002 issued immediately after the expiry of the applicant’s employment (see paragraph 12 above). As a result of the impugned measure, the applicant was faced, without any transitional period enabling her to adjust to the new situation, with the total loss of her right to early retirement pension, which – if not revoked - would constitute her only source of income after the expiry of her employment. The Court notes that following the revocation of the pension, the applicant did not work for two and a half years (see paragraphs 15 and 23 above). Subsequently, between 16 December 2004 and 31 May 2005 she worked on the basis of a civil law contract and only after 31 May 2005 did she manage to find a permanent job. The Government admitted in their observations that the applicant had had no income at all in 2003 and that her income in 2004 had amounted to EUR 25 (see paragraph 24 above). The applicant’s difficult financial situation is also confirmed by the fact that in 2004 she was granted a social care benefit for persons whose family income was below the established statutory level (see paragraph 26 above).

51. The Government submitted that the applicant’s husband and sons had worked at the relevant time. However, the Court considers that this fact is not decisive for the matter at hand, namely whether the revocation of the EWK pension placed an excessive burden on the applicant as an individual in her own right irrespective of third-party financial support.

52. In view of the above considerations, the Court does not see any reason to depart from its ruling in the leading case concerning EWK pensions, Moskal v. Poland, and finds that in the instant case a fair balance has not been struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden placed on the applicant was excessive.

53. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

54. Lastly, the applicant complained of an alleged violation of Article 14 of the Convention, without further explanation.

55. The Court has already examined the complaint under Article 14 of the Convention in the context of “EWK” pensions (see, Moskal, cited above §§ 100–101). It found that even if there had been a difference in the treatment of “EWK” pensioners in the Podkarpacki region, and particularly the applicant, it could not be excluded that such a difference may have resulted from the more efficient practices implemented by the local social security authority for verifying pension applications as compared to other regions. In particular, there was no evidence which would indicate that persons in receipt of the “EWK” pensions in the Podkarpacki region were deliberately targeted by the State authorities.

56. In consequence, similarly as in the Moskal case, this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

57. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

58. The applicant claimed PLN 45,000 (approx. EUR 10,715) in respect of pecuniary and PLN 30,000 (approx. EUR 7,143) in respect of non-pecuniary damage.

59. The Government submitted that since the application was inadmissible, the claims for pecuniary and non-pecuniary damage should be rejected.

60. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand the Court finds that the applicant was deprived of her income in connection with the violation found and must take into account the fact that she undoubtedly suffered some pecuniary and non-pecuniary damage (see Moskal, cited above, § 105 with a further reference). Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 6,000 to cover all heads of damage.

B. Costs and expenses

61. The applicant did not make any claim in respect of costs and expenses.

C. Default interest

62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, the amount of EUR 6,000 (six thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicant;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıLedi Bianku
Deputy RegistrarPresident

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