FOURTH SECTION
DECISION
Application no. 27473/09
Boguslawa GRANSORT
against Poland
The European Court of Human Rights (Fourth Section), sitting on 11 February 2014 as a Committee composed of:
Ledi Bianku, President,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 6 May 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Bogusława Gransort, is a Polish national, who was born in 1959 and lives in Niemcza. She was represented before the Court by Mr M. Duda, a lawyer practising in Dzierżoniów.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is divorced and has one child.
1. Proceedings concerning the grant and revocation of the EWK pension
4. On 14 July 1995 the applicant filed an application with the Social Security Board (Zakład Ubezpieczeń Społecznych – “the SSB”) 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.
5. Along with her application for a pension, she submitted, among other documents concerning her daughter’s health, a medical certificate issued by a specialist doctor on 13 July 1995. The certificate stated that the applicant’s daughter (born in 1986) suffered from bronchial asthma, recurring bronchitis and atopic skin and was in need of her mother’s constant care.
6. On 20 August 1995 the SSB issued a decision granting the applicant the right to an early‑retirement pension in the net amount of 206 Polish zlotys (PLN) per month. The starting date for payment of the pension was set for 16 June 1995.
7. On an unspecified date the applicant divorced her husband who was her daughter’s father. Since May 2000 the applicant’s former husband was taking care of their daughter.
8. On 30 July 2001 the Dzierżoniów District Court (Sąd Rejonowy) gave a decision by virtue of which the applicant’s parental responsibility in respect of her daughter was limited, the child was placed under her father’s care.
9. On 23 April 2002 the applicant’s former husband applied to the SSB to be granted the right to the EWK pension instead of the applicant. He relied on the decision of the Dzierżoniów District Court limiting the applicant’s parental responsibility.
10. On 10 May 2002 the SSB refused the application. The authority considered that under the relevant provisions of domestic law the child’s father could be granted the right to the EWK pension which had been previously awarded to the child’s mother, only when the mother had been deprived of parental responsibility or was otherwise unable to take care of the child personally. As the applicant had only been limited in her parental responsibility, there were no grounds to grant the right to the EWK pension to the child’s father.
11. The applicant’s former husband appealed against this decision. He argued that the child was under his care since May 2000 and that the applicant had not been personally taking care of her daughter.
12. On 23 October 2003 the Świdnica Regional Court (Sąd Okręgowy) dismissed his appeal.
13. On an unspecified date in late-2005 the SSB reviewed the applicant’s pension application in the course of supervision of certification of disability (zwierzchni nadzór nad orzecznictwem o niezdolności do pracy).
14. Having examined the medical certificate in question along with the other documents related to the course of the child’s medical treatment, on 26 January 2006 the Medical Certification Department of the SSB (Departament Orzecznictwa Lekarskiego Zakładu Ubezpieczeń Społecznych) concluded that the applicant’s child could not be considered as having required the permanent care of a parent on 13 July 1995, that is when the medical certificate had been issued.
15. On 21 February 2006 the SSB issued a decision by virtue of which the payment of the applicant’s early-retirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki – “the 1989 Ordinance”) was discontinued starting from 1 March 2006. The decision also stated that it had been issued on the basis 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”) and that it had been found that the applicant did not satisfy the conditions necessary to qualify for the EWK pension.
2. Proceedings before the courts
16. The applicant appealed against the above-mentioned decision discontinuing the payment of her 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 her original application for a pension. She also relied on the previous decisions of the SSB and the Świdnica Regional Court refusing the application of her former husband (see paragraphs 9-12 above).
17. On 25 April 2007 the Świdnica Regional Court dismissed the applicant’s appeal. Medical expert appointed by the court found that the applicant’s daughter was not, and had never been, in need of her parents’ constant care. The Regional Court therefore held that the payment of the applicant’s pension under the scheme provided by the 1989 Ordinance had been rightfully discontinued by the SSB under section 134 (1)(4) of the 1998 Law.
The Regional Court also established that the applicant’s daughter had remained under the care of her father since May 2000. The applicant’s parental responsibility had been limited and she had been ordered to pay child maintenance in respect of her daughter, who at the time of the proceedings was twenty-one years old. Although the applicant had been granted access rights by the decision of the Dzierżoniów District Court of 29 July 2002, her daughter refused to maintain contact with her.
18. The applicant lodged an appeal against the first-instance judgment which was dismissed on 5 February 2008 by the Wrocław Court of Appeal (Sąd Apelacyjny). The Court of Appeal agreed with the first-instance court’s findings of facts and law. The Court of Appeal considered that the doctrine of vested rights did not apply in the applicant’s case, as it had been found that she had acquired the right to the EWK pension unjustly.
19. On 22 January 2009 the Supreme Court refused to entertain the cassation appeal lodged by the applicant.
3. The applicant’s financial situation after the discontinuation of the payment of the EWK pension
20. Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the SSB.
The applicant submitted that on 4 May 2009 she was registered as an unemployed person without a right to an unemployment allowance.
B. Relevant domestic law and practice
21. The relevant domestic law and practice concerning the system of social security in Poland and in particular, the law regulating the so-called EWK early retirement pensions, are set out in the Court’s judgment 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.
22. The discontinuation of payment of social benefits is regulated in section 134 (1)(4) of the 1998 Law, which at the relevant time provided that the payment of benefits will be discontinued if it is comes to light that the right to the benefits has not existed (okaże się, że prawo do świadczeń nie istniało).
COMPLAINT
23. The applicant complained under Article 1 of Protocol No. 1 to the Convention about the discontinuation of the payment of the EWK pension.
THE LAW
24. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the decision to discontinue the payment of her early‑retirement pension amounted to an unjustified deprivation of property. Article 1 of Protocol No. 1 to the Convention 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.”
25. The relevant general principles are set out in paragraphs 49-50 of the Moskal judgment, cited above. The Court would nevertheless reiterate that any interference by a public authority with the peaceful enjoyment of possessions should be lawful, must be in the public interest and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Moskal, cited above, §§ 49 and 50).
26. The Court finds, as it did in previous similar cases, that the decision of the SSB discontinuing the payment of the applicant’s EWK pension amounted to an interference with her possessions within the meaning of Article 1 of Protocol No. 1 to the Convention and that this interference was provided for by law and pursued a legitimate aim, as required by this Article (see Moskal and Antoni Lewandowski, cited above).
27. Accordingly, it remains for the Court to assess the proportionality of the impugned interference.
In the above cited cases the Court, examining whether the decision to rectify the mistake by revoking the EWK pension struck a fair balance between the public interest at stake and the property rights of an individual, considered that the circumstances of each applicant’s case were decisive in this connection. In particular, it took into account the fact that the applicants had applied in good faith for the EWK pension, the pension was their only income, and its sudden revocation placed an excessive burden on them as they were left without any resources or prospects of finding a new job quickly (ibid.).
28. However, the present case differs from the cases cited above. Although the payment of the applicant’s pension was discontinued on 21 February 2006, the applicant had not been providing care to her daughter since May 2000 (see paragraphs 7 and 17 above). On 30 July 2001 her parental responsibility was limited (see paragraphs 8 and 17 above). The domestic courts also later confirmed that even though she had paid child maintenance in respect of her daughter she had had no contact with her (see paragraph 17 above).
29. The applicant herself did not report those circumstances to the authorities, however, the SSB was clearly aware of them as already in 2002 they had dealt with her former husband’s application for pension (see paragraph 10 above). Therefore, the Court cannot assume that the applicant in the present case did not act in good faith and that the payment of the benefit resulted from her failure to report the change in her circumstances (compare and contrast Kusina v. Poland (dec.), no. 28589/05, § 35, 9 April 2013 and B. v. the United Kingdom, no. 36571/06, § 39, 14 February 2012).
30. However, the Court considers that the EWK pension had a clear purpose under the domestic law, which was to enable parents to provide constant care to children who required such care due to the seriousness of their health condition (see paragraph 4 above, and Moskal, cited above, §§ 32 and 42). Contrary to this purpose, the applicant remained in receipt of the EWK pension despite not taking care personally of her daughter. Having regard to this fact, the Court considers that the State was justified in discontinuing the payment of the applicant’s benefit.
It should be also noted that the State did not require the applicant to return the amount of the pension which had been unduly paid.
31. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy