FOURTH SECTION
DECISION
Application no. 1840/05
Ryszard KICZEK
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 21 December 2004,
Having regard to the declaration submitted by the respondent Government on 7 November 2013 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ryszard Kiczek, is a Polish national, who was born in 1955 and lives in Strzyżów.
The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 March 2001 the Social Security Board (Zakład Ubezpieczeń Społecznych – “the SSB”) granted the applicant the right to an early‑retirement pension for persons raising children who required constant care (the so-called “EWK” pension) in the net amount of around 770 Polish zlotys (PLN).
On 28 August 2002 the SSB reopened the proceedings, revoked the initial decision granting a pension and eventually refused to award the applicant the right to the EWK pension. The payment of the pension was discontinued with immediate effect.
The applicant appealed against these decisions. On 23 October 2003 his appeal was finally dismissed by the Rzeszów Court of Appeal (Sąd Apelacyjny).
On 25 February 2004 the Supreme Court (Sąd Najwyższy) dismissed the cassation appeal lodged by the applicant.
COMPLAINTS
The applicant complained under Articles 6 and 8 of the Convention and, in substance, under Article 1 of Protocol No. 1 to the Convention about the reopening of the social security proceedings which had resulted in the revocation of his right to the EWK pension.
He also made a general complaint under Article 6 § 1 of the Convention that the proceedings in his case had been unfair.
Lastly, he complained under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 of discrimination based on his place of residence.
THE LAW
A. Revocation of the applicant’s right to the EWK pension
In the instant case the gist of the applicant’s complaints is that the decision to divest him of his early-retirement pension amounted to an unjustified deprivation of property. Consequently, the application falls to be examined under Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, provides 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.”
By letter dated 7 November 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“(...) the Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the violation of Article 1 of Protocol No. 1 to the Convention stemming from the sudden revocation of the applicant’s EWK pension which placed an excessive burden on the applicant incompatible with that provision.
Consequently, the Government are prepared to pay to the applicant the sum of EUR 7,000 (seven thousand euros) which they consider to be reasonable in the light of the Court’s case law. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.
The Government would respectfully suggest that the above declaration might be accepted by the Court as ‘any other reason’ justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention (...)”
In a letter of 30 November 2013 the applicant expressed the view that the sum mentioned in the Government’s declaration was unacceptably low.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court examined carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75‑77, ECHR 2003‑VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03).
The Court has established in a number of cases brought against Poland its practice concerning complaints under Article 1 of Protocol No. 1 to the Convention about the reopening of the social security proceedings which had resulted in the revocation of the applicant’s right to the so-called “EWK” pension (see, among other examples, Moskal v. Poland, no. 10373/05, 15 September 2009; Antoni Lewandowski v. Poland, no. 38459/03, 2 October 2012).
As regards the issues raised by the applicant under other provisions of the Convention, in all the previous similar cases examined to date the Court has held that the complaints under Articles 6 and 8 of the Convention did not require a separate examination (see, for example, Moskal, cited above, §§ 83 and 94; Antoni Lewandowski, cited above, § 88). It sees no reason to depart from this conclusion in the present case.
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Accordingly, it should be struck out of the list.
B. Remaining complaints
The applicant further complained under Article 6 of the Convention that the proceedings in his case had been unfair and that the domestic courts had wrongly assessed the evidence. He also relied on Article 14 of the Convention submitting that the practice of reopening proceedings concerning EWK pensions had been limited to the Podkarpacki region.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from these complaints (see also Moskal, cited above, §§ 86–88 and 100).
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Fatoş AracıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy