Communicated on 22 June 2015
FOURTH SECTION
Application no. 38189/12
Jan MALECKI against Poland
and 16 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Polish nationals.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
During various periods between 1 September 2003 and 8 March 2011 the applicants were employed as convicted persons while serving their sentences of imprisonment. For their work their received salary in the amount of half of the statutory minimum wage. The applicants were employed full-time or part-time on the basis of labour law contracts or so-called referrals (skierowanie, regulated by Article 121 of the 1997 Code on Execution of Criminal Sentences, the 1997 Code).
In all cases the situation ended on 8 March 2011 when the law was amended and the convicted persons started receiving for their work at least full minimum wage.
Some applicants complained to the penitentiary authorities about being paid half of the minimum wage. They received replies from the Regional Inspectorate of Prison Service that their remuneration was calculated in accordance with the law as it stood at the material time. Therefore their complaints were considered manifestly ill-founded.
Other applicants lodged civil proceedings for payment against the State Treasury in which they sought to be reimbursed the difference between full and half wage for the period of their employment prior to 8 March 2011. The domestic courts dismissed all actions lodged by the applicants reiterating that it had not been illegal to pay the prisoners half of the minimum statutory wage. The courts found no basis to apply the judgment of the Constitutional Court before the date on which the unconstitutional provision lost its binding force, which happened only on 9 March 2011. In two cases the courts relied on the position of the Supreme Court expressed in its judgment of 20 April 2006 in that if the Constitutional Court allows for a unconstitutional provision to remain in force for a period of time after the judgment, such situation does not give rise to claim compensation for the period of time prior to the date on which the provision lost force (Dobrowolski 45651/11 and Wasyluk, 23299/14). The domestic court thus concluded that the salary received by the applicant for his work had been calculated in accordance with the law. The appeals were also all dismissed on similar basis.
B. Relevant domestic law and practice
1. The 1997 Code
Article 123 (2) of the 1997 Code of Execution of Criminal Sentences (the 1997 Code, Kodeks Karny Wykonawczy), in its version which had been in force between 1 September 2003 and 8 March 2011, stated that the remuneration of a convicted person employed full-time should be not less than half of a minimum wage in Poland. The persons employed for less than full-time would have their income calculated proportionally to the number of hours worked, taking at least half of the minimum wage as a base.
On 8 March 2011 the amendment to the 1997 Code entered into force (Law of 3 February 2011). The new Article 123 (2) stipulates that the convicted persons shall receive at least minimum statutory wage.
The same Law amended Article 125 of the 1997 Code introducing a new deduction of 25% of the salary of the convicted person for a Fund aiming at professional motivation of convicted persons and development of enterprises within prisons (Fundusz Aktywizacji Zawodowej Skazanych oraz Rozwoju Przywięziennych Zakładów Pracy). Since 8 March 2011 this deduction adds to the existing one for Post-Penitentiary Aid Fund (Fundusz Pomocy Postpenitencjarnej). The deduction for the latter Fund was decreased from 20 % prior to 8 March 2011 to 10 % after that date.
2. The Supreme Court’s practice
In its judgment of 20 April 2006 the Supreme Court (IV CSK 38/06) stated as follows, in so far as relevant:
“By delaying the date on which a provision loses its force the Constitutional Court indicates its position regarding prospective effects of its judgment. To think otherwise would challenge the meaning of such postponing. It means that, until the period after which the provision will lose its binding force elapses, the courts and other State authorities shall apply this provision. In consequence in such circumstances there is no possibility to re-open the proceedings.”
3. The Constitutional Court’s judgment
On 23 February 2010 the Constitutional Court gave a judgment in a case originating from a preliminary question referred to it by a domestic court (P 20/09). The Constitutional Court held that Article 132 (2) of the 1997 Code was incompatible with Articles 32 and 65 (4) taken in conjunction with Article 2 of the Constitution. As regards the merits of the case the Constitutional Court considered that the Constitution in principle does not forbid differentiating the basic minimum wage provided that it is justified and fulfils other conditions. The Constitutional Court considered that the prisoners’ work should not be perceived as punishment and that they also have right to just remuneration. The court dismissed as irrelevant the arguments of the Sejm and the Prosecutor General that their work was a part of re-socialisation process. The Constitutional Court decided that all employees, regardless of the legal basis of their employment, should be equally treated with regard to the salary to which they are entitled. Therefore both a person employed at liberty and the one employed after a conviction shall be entitled to a salary regulated by similar rules concerning minimum wage. The reason for difference in treatment, namely whether a worker was a convicted person or not, breached the constitutional principle of equality. The Constitutional Court noted that there exist other ways to lower the costs of work of a convicted person, like tax incentives, which do not require reducing their minimum wage.
The Constitutional Court examined the potential consequences of its judgment. It decided, on the basis of Article 190 § 3 of the Constitution, to postpone the date on which the impugned Article 123 (2) of the 1997 Code would lose its binding force, for twelve months after the official publication of the judgment on 8 March 2010. This period would give time necessary for employers to adapt to the new rules and to the legislator to modify the system so to compensate the employers for the rise of minimum wage and to incite them to employ the convicted persons. The impugned provision was to lose force on 9 March 2011.
COMPLAINTS
1. All applicants complain under various Articles of the Convention that they received half of their minimum wage for their work carried out while serving their prison sentences. They complain that such regulation was discriminatory and breached their property rights.
2. Dobrowolski (45651/11); Szubrych (74228/12); Pacholski (81145/12):
The applicants complain that after the amendment to the 1997 Code entered into force their salary is again reduced as a new deduction of 25 % was introduced.
COMMON QUESTIONS for ALL APPLIcations
All applicants complain about being paid half of the minimum statutory wage in the period between 1 September 2003 and 8 March 2011. In this connection:
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
In particular, should the constitutional complaint and the complaint with the Regional Inspectorate of Prison Service be considered as an effective remedy within the meaning of this provision?
Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?
2. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention?
Have the applicants been deprived of their possessions in the public interest, and in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1 to the Convention?
3. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of being employed as convicted persons, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention?
CASE SPECIFIC QUESTIONS
The applicants in cases Dobrowolski (45651/11), Pacholski (81145/12) and Szubrych (74228/12) additionally complain about deduction of 25 % introduced by the amendment to the Code of Execution of Criminal Sentences which entered into force on 8 March 2011. In this respect:
4. (a) Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
(b) Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? Have the applicants been deprived of their possessions in the public interest, and in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1 to the Convention?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Facts
Employment periods during the imprisonment when half wage
Domestic remedies engaged in respect of the complaint about half of the minimum wage
Other complaints to be communicated
401/11
07/12/2010
Wiesław SZABELKOWSKI
01/04/1971
Wolow
Served five-year sentence of imprisonment in Wołów Prison.
26 June 2009 (or April 2009) until 8 March 2011.
Full-time employment
Complaint with the Ministry of Justice lodged on 18 October 2010. On 25 November 2010 the Wrocław Regional Inspectorate of Prison Service dismissed the complaint.
None
3741/11
11/01/2011
Sławomir PÓŁKOŚNIK
13/12/1966
Milicz
The applicant served a sentence of imprisonment in Oleśnica and Wołów Prison.
1. 11/2006 – 07/2007 full-time employment
2. 18/03/2008 – 08/03/2011; part-time employment.
Complaint with the Ministry of Justice lodged on 29/11/2010 and on 07/12/2010
On 11 February 2011 the Wrocław Regional Inspectorate of Prison Service dismissed the complaints.
None
45651/11
28/06/2011
Krzysztof DOBROWOLSKI
15/04/1974
Rogalinek
The applicant was serving a prison sentence in Koziegłowy prison.
After 2011 still employed.
1. 15/10/2009 – 31/12/2010 full time employment
2. 01/01/2011 - 8/03/2011
(half time)
2. 9/03/2011 – 23/06/2013 (Minimum wage)
Two civil actions against the State Treasury; dismissed by Poznań District Court on 12 December 2013 and 25 February 2014. Upheld on appeal by the Poznań Regional Court on 16 September 2014 and 19 September 2014
Under Article 14 about new deductions introduced on 8 March 2011. Complained about them to the Ombudsman (reply on 1 April 2011).
68650/11
11/10/2011
Dariusz RUDNICKI
20/07/1964
Sieradz
Since 2000 the applicant serves sentence of 25 years’ imprisonment.
February 2005 – 8 March 2011
The applicant lodged a civil claim for compensation. However his motion for exemption from the court’s fees and for legal aid was dismissed by the Sieradz Regional Court on 8 March 2011 (upheld by the Lodz Court of Appeal on 7 April 2011). The courts found his claim for payment manifestly ill-founded.
None
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Facts
Employment periods during the imprisonment when half wage
Domestic remedies engaged in respect of the complaint about half of the minimum wage
Other complaints to be communicated
78490/11
18/10/2011
Sławomir PAWLAK
06/06/1973
Elbląg
From 12 July 2007 until 14 January 2009 employed part-time.
From 8 December 2005 until 14 January 2009 almost continuously for part time (except 2 months of full time).
The applicant lodged a civil claim for compensation.
On 22 June 2010 his motion for legal aid lawyer was dismissed.
On 13 September 2010 the Elbląg District Court found itself incompetent to deal with this case and transferred it to a penitentiary court. The case was further transferred between courts.
Outcome of the proceedings unknown.
None
33379/12
29/05/2012
Adam BŁACH
21/11/1969
Głogów
The applicant was employed in the Wołów Detention Centre.
21/05/2009 – 08/03/2011
Complaint with the Ministry of Justice.
On 20 March 2012 the Wroclaw Regional Inspectorate of Prison Service dismissed the complaint.
None
38189/12
08/05/2012
Jan MALECKI
11/06/1959
Zambrów
The applicant was employed in the Czerwony Bór Detention Centre.
1. 13/07/2007 – 18/12/2007
(7/8 of the time)
2. 15/04/2008 – 13/11/2009
(6/8 of the time)
The applicant lodged a civil claim for compensation. His claim was dismissed on 9 June 2011 by the Zambrów Regional Court. On 14 December 2011 the Łomża Regional Court dismissed the applicant’s appeal.
None
47847/12
23/07/2012
Krzysztof IMIOŁEK
20/04/1978
Wołów
The applicant was employed in the Wołów Detention Centre.
From January 2004 until 8 March 2011 (mostly part-time employment, for one year full time).
He lodged a complaint with the prison authorities. His complaint was dismissed on 5 July 2012 by the Regional Inspectorate of the Prison Service.
None
56382/12
28/08/2012
Krzysztof JASIŃSKI
13/03/1981
Głogów
The applicant was employed in the Głogów Prison.
05/08/2008-05/12/2008
23/07/2009-17/12/2010
The applicant lodged a complaint which was dismissed on 28 June 2012 by the Wrocław Regional Inspectorate of Prison Service.
None
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Facts
Employment periods during the imprisonment when half wage
Domestic remedies engaged in respect of the complaint about half of the minimum wage
Other complaints to be communicated
60722/12
10/09/2012
Grzegorz WRÓŻ
21/05/1979
Wołów
The applicant was employed in the Racibórz and Wrocław Prison.
23 February 2005 to 4 January 2007 (full-time employment)
19 July 2007 to 19 August 2008 (part-time).
The applicant complained with the Ministry of Justice. His complaints were dismissed by the Regional Inspectorate of Prison Service on 26 September and 15 October 2012.
None
66342/12
21/09/2012
Mirosław WOJCIECHOWSKI
22/02/1968
Wronki
The applicant worked in several prisons.
7 Jan 2008 to 8 March 2011
The applicant lodged a civil claim for compensation against the State Treasury. On 30 December 2011 the Szamotuły District Court dismissed his claim. On 24 July 2012 the Poznań Regional Court dismissed his appeal.
None
67079/12
01/10/2012
Zbigniew MARTYNIAK
02/11/1972
Żagań
The applicant was employed in the Wołów Prison.
March 2005 to March 2010
The applicant worked in prison for 9 months and 15 days (from 12 December 2006 to 23 July 2007 and from 14 January to 20 March 2008
He instituted civil proceedings for the protection of his personal rights and he raised the above issue in his action before the domestic court.
On 2 December 2011 the Wrocław Regional Court dismissed the applicant’s claim.
On 26 April 2012 the Wrocław Court of Appeal dismissed his appeal.
None
74228/12
06/11/2012
Mariusz Andrzej SZUBRYCH
02/11/1957
Poznań
He served prison sentence in the Koziegłowy Prison
June 2006 and December 2007- March 2011 and September 2012
None
Additional deductions of 10 % and 25% introduced after 2011 – complaint about it dismissed by the Ombudsman on 20 April 2012.
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Facts
Employment periods during the imprisonment when half wage
Domestic remedies engaged in respect of the complaint about half of the minimum wage
Other complaints to be communicated
81145/12
13/12/2012
Jan PACHOLSKI
27/07/1962
Wołów
The applicant was employed when detained in Wołów Prison,
11 July 2005 to 15 November 2007,
14 February until 21 May 2008
27 January 2010 to 8 March 2011
The applicant complained with the Regional Inspectorate of the Prison Service raising the issue that he should have been paid at least a minimum salary.
On 31 October 2012 the authority dismissed his complaint as unfounded.
Additional deductions of 10 % and 25% introduced after 2011 – complaint about it dismissed on 4 July 2014 by the Regional Inspectorate of the Prison Service.
29795/13
25/04/2013
Tomasz SUSZYNA
25/08/1978
Wrocław
The applicant was employed in the Herby and Wołów Prison.
March 2005 to March 2010
The applicant brought a civil action against the State Treasury. On 14 June 2012 the Racibórz District Court dismissed the claim and on 9 October 2012 the Częstochowa Regional Court finally dismissed his appeal.
None
61693/13
09/09/2013
Andrzej TOMICZ
10/01/1971
Strzelce Opolskie
The applicant was employed in Racibórz Prison.
27 July 2006 – 10 March 2009
The applicant brought a civil action against the State Treasury. The Raciborz District Court on 9 October 2012 dismissed the applicant’s claim.
On 13 March 2013 the Gliwice Regional Court upheld the above judgment.
None
23299/14
13/03/2014
Andrzej WASYLUK
09/08/1968
Nysa
The applicant worked in Strzelce Opolskie Prison
22 November 1996 to 11 September 2008
The applicant brought a civil action for compensation against the State Treasury. On 11 March the Warsaw Regional Court dismissed his claim.
On 23 October 2013 the Warsaw Court of Appeal dismissed the applicant’s appeal.
On 17 January 2014 the applicant was informed by the legal aid lawyer about the lack of grounds for cassation appeal.
None
Full & Egal Universal Law Academy