CASE OF KURA v. POLAND

FOURTH SECTION

CASE OF KURA v. POLAND

(Application no. 17318/04)

JUDGMENT

STRASBOURG

2 October 2012

FINAL

02/01/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kura v. Poland,

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

David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 11 September 2012,

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

PROCEDURE

1. The case originated in an application (no. 17318/04) 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 Krystyna Kura (“the applicant”), on 19 April 2004.

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz 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. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1962 and lives in Sokołόw Małopolski.

6. The applicant is a single mother and has three children. Prior to her application for an early‑retirement pension she had been employed by the same company for twenty years and paid social security contributions to the State.

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

7. On 19 January 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 medical centre. The certificate stated that the child (born in 1988) suffered from chronic asthma (przewlekła astma oskrzelowa) and that she had been in need of her parent’s constant care.

9. On 29 January 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an early‑retirement pension as of 1 January 2001 in the net amount of 593 Polish zlotys (PLN).

10. The Social Security Board initially suspended the payment of the pension until 1 March 2001 due to the fact that the applicant was still working on the date of the decision. The applicant resigned from her job.

11. On an unspecified date Rzeszów Social Security Board 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. On 16 May 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.

12. On 27 May 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, 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.

13. 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 applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.

14. On 1 August 2002 the Rzeszow Regional Court (Sąd Okręgowy) allowed the appeal and granted the applicant the EWK pension. The SSB appealed against the judgment.

15. On 19 March 2003 the Rzeszow Court of Appeal allowed the appeal and remitted the case for reconsideration.

16. On 20 November 2003 the Rzeszow Regional Court upheld the SSB’s decision of 27 May 2002 and dismissed the applicant’s appeal against it. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. 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 did not satisfy the requirement of necessary permanent care.

17. The applicant further appealed against the first‑instance judgment.

18. On 26 March 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal.

19. The applicant did not lodge a cassation appeal with the Supreme Court.

B. The applicant’s financial situation following the revocation of the EWK pension

20. Following the social security proceedings the applicant was not ordered to return her early‑retirement benefits paid by the Social Security Board, despite the revocation of her right to an early‑retirement pension.

21. The applicant submitted that after the revocation of the EWK pension she had not received any unemployment or other benefits from the State.

22. The Government submitted that between 29 August 2006 and 24 August 2009 the applicant has been intermittently employed and was receiving a salary of approximately PLN 11,000 per year. In 2010 the applicant received unemployment benefit for a few months. In addition, the Government maintained that the applicant has been receiving child support payment, apparently from the father of her children, in the amount of PLN 7,500 per year. However, it is not clear how long she has been receiving such payment.

23. The Government submitted that the applicant’s two adult children have been employed since 2006. Moreover, the child in respect of whom the applicant had been granted the EWK pension, now aged 21, started working in 2009.

24. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation.

25. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2022.

C. Other EWK cases pending before the Court

26. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.

27. Out of all applications lodged with the Court, about twenty‑four applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.

28. One hundred‑and‑four applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eighty‑one applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Social security system

29. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 31‑34, 15 September 2009.

30. The reopening of the proceedings concerning the early‑retirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows:

“The right to benefits or the amount of benefits will be re‑assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”

On 1 July 2004 a new subparagraph 114 (1) a was added, which reads as follows:

“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”

B. Cassation appeal

31. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second‑instance court. A party had to be represented by an advocate or a legal adviser.

32. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:

“The cassation appeal may be based on the following grounds:

1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;

2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”

33. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re‑examination. Where the Supreme Court failed to find non‑conformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was well‑founded the Supreme Court could also amend the impugned judgment and adjudicate on the merits.

C. Constitutional Court’s judgment

1. Judgment no. K 18/99

34. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an age‑limit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution.

35. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits.

2. Judgment no. K5/11

36. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted.

37. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.

THE LAW

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

38. 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. The 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 her possessions. No one shall be deprived of her 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 objection on non‑exhaustion of domestic remedies

(a) The parties’ submissions

39. The Government firstly submitted that the applicant had not exhausted the remedies available under Polish law in that she had not lodged a cassation appeal with the Supreme Court. They argued that the cassation appeal should be considered an effective and available remedy for the EWK cases. The Government referred to some examples of domestic case‑law. In particular, they pointed to a case in which a cassation appeal had been allowed by the Supreme Court which had then remitted it to the Court of Appeal. Afterwards the applicant’s appeals against the SSB’s decision had again been rejected at two instances and, finally, the Supreme Court had refused to entertain the second cassation appeal lodged in the case. The Government failed to indicate the grounds invoked by the Supreme Court for quashing the judgment when it examined the cassation appeal for the first time.

40. They further 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 relied on a judgment delivered by the Constitutional Court on 4 January 2000 (see paragraphs 34 and 35 above).

41. In their most recent submissions, the Government referred to the Constitutional Court’s judgment of 28 February 2012 (see paragraph 36 above). They maintained that even though the decisions issued in the EWK cases had been based on section 114 (1) of the 1998 Law and not on section 114 (1)(a), the applicant should nevertheless have availed herself of the possibility of lodging a constitutional complaint.

42. The applicant contested the objection and considered that she had exhausted all available remedies.

(b) The Court’s assessment

(i) Cassation appeal

43. The Court notes that there were essentially two types of decisions terminating the proceedings in the EWK cases. First, in all cases where the applicants lodged cassation appeals in accordance with the procedural requirements, the Supreme Court either examined them on the merits as in Moskal (cited above, § 24) or decided not to entertain them. Second, in cases where the applicants, as in the present case, desisted from lodging cassation appeals the final decisions were those given by the courts of appeal.

44. Analysing the applications brought to the Court concerning the same subject‑matter it is noticeable that only fifteen cassation appeals were examined on the merits by the Supreme Court. Moreover, they were all dismissed. The Supreme Court refused to entertain eighty‑one correctly lodged cassation appeals seeing no ground justifying their examination on the merits (see paragraph 28 above). Twenty‑four applicants did not attempt to lodge a cassation appeal claiming that the practice of the Supreme Court showed that this remedy had no prospects of success (see paragraph 27 above).

45. The Court considers that there was a consistent line of jurisprudence of the regional and appellate courts in cases where an EWK pension was revoked after the SSB’s doctor had re‑assessed the file and concluded that the child’s illness had not been such as to require the parent’s constant care within the meaning of the domestic law. The Supreme Court in principle endorsed this approach by refusing to examine on the merits cassation appeals in the great majority of cases. Moreover, the Government did not refer to any examples of cases in which the Supreme Court had allowed a cassation appeal and reversed the previous judgments by granting the EWK pension.

46. The applicant in the case under consideration appealed against the SSB’s decision to the regional and later to the appellate court. The core of her appeals was the allegedly incorrect assessment by the SSB’s doctor that the child had not required the applicant parent’s constant care and the court’s conclusion that the EWK pension had been correctly revoked. There is no appearance that she raised any particular complaint of a breach of procedure or law that would justify lodging a cassation appeal (see paragraph 30 above). The Court therefore accepts that, in the particular circumstances of the present case, the applicant was not required to avail herself of that remedy (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 156, ECHR 2003‑VI).

47. In the light of the above, the Court finds that in the particular circumstances of the case the applicant should be considered to have been dispensed from appealing to the Supreme Court in her case.

(ii) Constitutional complaint

48. The Court reiterates that it has already held that in Poland a constitutional complaint was an effective remedy for the purposes of Article 35 § 1 of the Convention only in situations where the alleged violation of the Convention resulted from the direct application of a legal provision considered by the complainant to be unconstitutional (see, among other authorities, Szott‑Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003).

49. Furthermore, Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non‑exhaustion to satisfy the Court that the remedy was an effective one available not only in theory but also in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999‑V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002‑VIII).

50. In so far as the Government referred to the Constitutional Court’s judgment of 4 January 2000, the Court observes that the Government failed to indicate which provision of the 1998 Law should have been challenged by the applicant before the Constitutional Court. They have merely stated that the applicant could have contested “the relevant social security provisions” without specifying any constitutional provision that could have been relied on in the applicant’s situation. Furthermore, they have not adduced any relevant case‑law of the Constitutional Court which would have demonstrated that such complaint, in the circumstances of the applicant’s case, offered any prospects of success.

51. As regards the second limb of the Government’s objection, the Court observes that, as the Government have acknowledged, section 114(1)(a) of the 1998 Law was not applicable in the present case. The SSB’s decision to reopen the proceedings concerning the relevant benefit was based on section 114(1) (see paragraphs 37 and 41 above). While it is true that the Ombudsman’s application was successful (see paragraph 37 above), this does not of itself indicate that a hypothetical complaint lodged by the applicant would have had a similar effect. Moreover, it should be noted that the Ombudsman’s challenge was examined nearly ten years after the events complained of in the present case. In reality, the Government’s objection is based on a theoretical and retrospective, and therefore highly speculative, comparison between the applicant’s situation at the material time and recent developments in the Constitutional Court’s case‑law.

52. In consequence, the Court considers that in the present case a constitutional complaint cannot be considered with a sufficient degree of certainty to have been a remedy offering reasonable prospects of success.

For these reasons, the Government’s plea of inadmissibility on the ground of non‑exhaustion of domestic remedies must be dismissed.

2. Conclusion on admissibility

53. 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

54. 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.

55. In the applicant’s view, there was no reasonable relationship of proportionality between the interference and the interests pursued. She had quit her employment in order to take care of her sick child. The special measures taken by the Government in the Podkarpacki region had no relevance for her professional situation, in view of her age and education. For these reasons it had been impossible for her to find a job for over four years.

56. The applicant also claimed that she had borne an excessive burden in that the decision of 27 May 2002 had deprived her of her main source of income with immediate effect.

(b) The Government

57. 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 public interest. There was also a reasonable relationship of proportionality between the interference and the interests pursued. In the Polish social security system only retirement pensions granted under the general scheme, were, in principle, permanent and irrevocable. All other benefits based on conditions subject to change were subject to verification and possible revocation.

58. They further noted that even though the decision to revoke the EWK pension had a retroactive effect, the applicant had not been required to reimburse the sum of PLN 11,255.

2. The Court’s assessment

(a) General principles

59. 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

60. The parties agreed that the decisions of the Rzeszów Social Security Board of 27 May 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

61. 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, 61‑63 and also Iwaszkiewicz v. Poland, no. 30614/06, §§ 47, 48, 26 July 2011).

(iii) Proportionality

62. In the instant case, a property right was generated by the favourable evaluation of the applicant’s dossier attached to her application for a pension, which was lodged in good faith, and by the Social Security Board’s recognition of the right (see paragraphs 8 and 9 above). Before being invalidated the decision of 29 January 2001 had undoubtedly produced effects for the applicant and her family.

63. It must be stressed that the delay with which the authorities reviewed the applicant’s dossier was relatively long. The 2001 decision was left in force for sixteen 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 11 and 12 above). Even though the applicant had an opportunity to challenge the Social Security Board’s decision of 27 May 2002 in judicial review proceedings, her right to the pension was determined by the courts more than twenty months later and during that time she was not in receipt of any welfare benefit (see paragraphs 18 and 21 above).

64. 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).

65. In the Court’s opinion, the fact that the State did not ask the applicant to return the pension which had been unduly paid (see paragraph 57 above) did not mitigate sufficiently the consequences for the applicant flowing from the interference in her case. The Court notes in this connection that the applicant, after her right to the EWK pension had been confirmed by the authorities, decided to resign from her employment.

66. It should also be observed that 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 early‑retirement pension, which constituted her main source of income. Moreover, the Court is aware of the potential risk that, in view of her age and the economic reality in the country, particularly in the undeveloped Podkarpacki region, the applicant might have considerable difficulty in securing new employment. Indeed it took the applicant over four years to find a temporary employment (see paragraph 22 above).

67. The Government submitted that the applicant’s adult children had been employed since 2006 or 2009. 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 or a reduction in her financial burden.

68. The Government stressed that the applicant had been receiving child support payment in respect of her three children. They failed to specify in which years she received that benefit and how it was calculated. In any event the Court considers that the child‑support payment is intended to cater for the costs of raising children and cannot be considered as income of the children’s mother.

In so far as the Government listed various benefits available in Poland, the Court considers that they have failed to specify which of those benefits, if any, were available in the applicant’s situation. It should be noted that the applicant submitted that she had not been eligible to apply for any welfare benefits.

69. 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.

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

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

71. The applicant also complained about the ex officio reopening of the social security proceedings, which had resulted in the quashing of the final decision granting her a right to a pension, was in breach of Article 6 § 1 of the Convention.

72. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

73. However, having regard to the reasons which led the Court to find a violation of Article 1 of Protocol No. 1 to the Convention, the Court finds that the applicant’s complaint under Article 6 of the Convention regarding the principle of legal certainty does not require a separate examination (see Moskal, cited above, § 83).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

74. 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

75. The applicant claimed PLN 60,000 (approximately 15,000 euros (EUR)) in respect of pecuniary and non‑pecuniary damage.

76. The Government contested the claim.

77. 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 he undoubtedly suffered some pecuniary and non‑pecuniary damage (see Koua Poirrez, cited above, § 70). Making an assessment on an equitable basis, as is required by Article 41 of the Convention, the Court awards the applicant EUR 12,000 to cover all heads of damage.

B. Costs and expenses

78. The applicant did not make a claim in respect of costs and expenses.

C. Default interest

79. 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

1. Declares unanimously the application admissible;

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

3. Holds unanimously that there is no need to examine separately the complaint under Article 6 of the Convention;

4. Holds five votes to two

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of both pecuniary and non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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.

Done in English, and notified in writing on 2 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıDavid Thór Björgvinsson
              Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Judges Hirvelä and Bianku is annexed to this judgment.

D.T.B.
F.A

JOINT PARTLY DISSENTING OPINION OF
JUDGES HIRVELÄ AND BIANKU

The instant case raises issues similar to those dealt with by the Court in Moskal v. Poland (no. 10373/05) and Lewandowski v. Poland (38459/03). The majority in those cases found that there had been a breach of Article 1 of Protocol No. 1 to the Convention. We dissented. We dissent in this case also, for the reasons we gave in our Joint Partly Dissenting Opinion in the Moskal case and in the Lewandowski case.

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