FOURTH SECTION
DECISION
Application no. 38902/12
Irena SKIBA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 26 November 2013 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 11 June 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Irena Skiba, is a Polish national, who was born in 1957 and lives in Mielec.
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 married and has children. Prior to her application for a pension she had been employed since July 1988 by the same employer.
1. Proceedings concerning the grant and revocation of the EWK pension
4. On 24 December 1998 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, the applicant submitted, among other documents concerning her daughter’s health, a medical certificate issued by a specialist doctor on 16 December 1998. The certificate stated that the child (born in 1983) suffered from chronic asthmatic bronchitis, chronic sinusitis and a heart defect and was in need of the parent’s constant care.
6. On 31 March 1999 the SSB issued a decision granting the applicant the right to an early‑retirement pension in the net amount of 415 Polish zlotys (PLN). The starting date for payment of the pension was set for 1 December 1998.
7. The applicant did not resign from her employment. She continued working full-time for the same employer until 15 September 1999. On 16 June 2000 the applicant started to work for a different employer.
8. On 19 February 2010 the SSB reviewed the applicant’s pension application under section 114 (1) 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”). On the same date the applicant was also requested to submit the relevant medical documents.
9. On 23 March 2010 the SSB requested the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to specify whether the applicant’s daughter required the permanent care of a parent. On 25 March 2010 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.
10. On 30 March 2010 the SSB simultaneously issued two decisions in respect of the applicant. By virtue of the first decision, the payment of the applicant’s pension was discontinued starting from 1 May 2010. By virtue of the second decision, the Board revoked the initial decision of 31 March 1999 and eventually refused to award the applicant the right to an 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”).
11. The applicant appealed against the above-mentioned decisions. 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. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.
12. On 24 June 2010 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal.
The Regional Court established that although the applicant had been granted the EWK pension by virtue of the decision of 31 March 1999 she had not resigned from her employment. In the period from 16 July 1988 until 15 September 1999 she had been employed on a full-time basis. On 16 June 2000 she had started working on a part-time basis (one-fourth) for a new employer and continued this employment during the proceedings. The court further established that in 2008 and 2009 the applicant had also been working for another employer.
The Regional Court referred to paragraph 1 of the 1989 Ordinance, which in the relevant part provided that only persons who personally took care of a child were entitled to the EWK pension. Moreover, as the 1989 Ordinance ceased to be in force on 31 December 1998, its provisions remained in operation only with regard to persons who had met the requirements of an early-retirement pension before that date. In view of the above, the Regional Court concluded that the applicant, having been in employment at the relevant time, did not satisfy the requirement of providing personal permanent care for her daughter, either on the date of her application for a pension or as of 31 December 1998. The court also held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance.
The Regional Court additionally established that the applicant’s daughter had attended a primary school and, subsequently a high school, without any special arrangements or assistance of a third person. She had finished both schools without any delays. Later, she had also graduated from a university. When the case was heard by the Regional Court, she resided abroad.
As regards the legal basis for the reopening of the proceedings by the SSB, the Regional Court referred to both paragraph 1 and paragraph 1a of section 114 of the 1998 Law, finding that the decisions of the SSB had been issued in accordance with the domestic law.
13. The applicant appealed against the first-instance judgment. She argued that the principle of vested rights protected her once-acquired pension from revocation. She also submitted that the ex-officio reopening of the proceedings by the Social Security Board had been contrary to section 114 of the 1998 Law.
14. On 30 September 2010 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. The appellate court agreed with the first‑instance court’s findings of fact. However, in respect of the applicant’s employment, it additionally established that from 2009 the applicant had been working on a part-time (three-fourth) basis and subsequently from July 2010 – on a half-time basis.
Referring to the reopening of the proceedings, the Court of Appeal found that, in the applicant’s case the pension proceedings had been reopened because new evidence i.e. the documents related to the course of the child’s medical treatment had been obtained by the SSB. The court further observed that the SSB was thus allowed on the basis of section 114 (1a) of the 1998 Law to reopen the proceedings.
15. On 23 November 2011 the Supreme Court refused to entertain the cassation appeal lodged by the applicant.
2. Proceedings concerning the applicant’s request for reopening of judicial proceedings
16. On 16 April 2012 the applicant requested for the proceedings terminated by the Tarnobrzeg Regional Court on 24 June 2010 and by the Rzeszów Court of Appeal on 30 September 2010 to be reopened. She relied on the judgment of the Constitutional Court of 28 February 2012 declaring section 114(1a) of the 1998 Law unconstitutional (see also Samsel v. Poland, 55100/11 (dec.), §§ 21-26, 27 August 2013).
17. On 28 June 2012 the Rzeszów Court of Appeal dismissed the applicant’s request. The Court of Appeal considered that its initial task in the course of re-examination of the applicant’s case was to establish which of the paragraphs of section 114 of the 1998 Law had constituted a legal basis for the reopening of proceedings by the SSB and for the subsequent judgments. While the SSB had invoked section 114(1) of the 1998 Law, the courts had relied in their judgments on both paragraphs 1 and paragraph 1a of this provision.
The court found that, in the circumstances of the case, it had been in fact paragraph 1 of section 114 of the 1998 Law which had constituted the legal basis for the impugned decision and the judgments. In the court’s view, the findings of the SSB and the courts had resulted from discovery of circumstances which had existed before the issuing of the decision and which had had an impact on the right to the benefit in question within the meaning of this provision. The court pointed out that these circumstances, i.e. the fact that the applicant’s daughter’s state of health had not necessitated her mother’s permanent care, had been discovered on the basis of medical documentation obtained by the authority and not upon reassessment of the earlier submitted evidence within the meaning of paragraph 1a of section 114.
Consequently, as the proceedings concerning the applicant’s pension had been reopened on the basis of section 114(1) and not on the basis of the unconstitutional section 114(1a) of the 1998 Law, the Court of Appeal found that the applicant’s request for reopening of the judicial proceedings should be dismissed.
3. The applicant’s financial situation following the revocation of the EWK pension
18. 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 the early-retirement pension.
19. The applicant was employed continuously almost throughout the whole period when she was receiving the EWK pension. She continued full‑time employment until 15 September 1999. On 15 June 2000 she started working on a part-time (one-fourth) basis and continued this employment during the judicial proceedings in her case (see paragraphs 7 and 12 above). At least from 2008 she also had a second job in which she was employed on a part-time basis (see paragraphs 12 and 14 above). At the time when the pension was revoked she was altogether working on a part‑time (three-fourth) basis and subsequently from July 2010 – on a half‑time basis (see paragraph 14 above).
B. Relevant domestic law and practice
20. 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 and in the Court’s decision in the case of Samsel v. Poland (dec.), 55100/11, August 2013, §§ 21-26.
COMPLAINTS
21. The applicant complained under Articles 6, 8 and 14 of the Convention and 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 her right to the EWK pension.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
A. Preliminary issues
1. Scope of the case before the Court
22. In the instant case the gist of the applicant’s complaints is that the decision to divest her of her 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 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.”
2. Exhaustion of domestic remedies
23. It should be noted that the applicant has not informed the Court whether she lodged a cassation appeal with the Supreme Court against the judgment of the Rzeszów Court of Appeal of 28 June 2012 dismissing her request for the reopening of judicial proceedings (see paragraph 17 above). However, in the present case the Court does not find it necessary to determine whether the rule of exhaustion of domestic remedies has been complied with since it considers that the application is in any event inadmissible for the reasons given below.
B. Article 1 of Protocol No. 1 to the Convention
24. The relevant general principles are set out in paragraphs 49–52 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).
It would further reiterate that, as a general principle, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence, and that it was open to them to reassess an applicant’s entitlement to a pension (see Moskal, cited above, § 73 and Iwaszkiewicz v. Poland, no. 30614/06, §§ 53 and 70, 26 July 2011).
25. The Court finds, as it did in previous similar cases, that the decision of the SSB depriving 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 and that this interference was provided for by law and pursued a legitimate aim, as required by this Article (see Moskal, cited above, §§ 56‑57 and 61‑63).
26. However, in assessing the proportionality of this interference, the Court considers that the present case differs substantially from the cases it examined in which the applicants resigned from gainful employment in order to obtain 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 perspective to find a new job quickly (see, among many other examples, Moskal and Antoni Lewandowski, cited above).
27. In contrast, as a result of the revocation of the pension, the applicant in the instant case was not faced with the total and immediate loss of her only source of income as she retained her salary (see also Rzepa v. Poland (dec.), no. 30361/04, 9 April 2013, § 34). Nor did she resign from her job after her right to the EWK pension had been confirmed by the authorities; indeed, she was employed almost continuously during the whole period when she was in receipt of the pension (see paragraphs 7, 12, 14 and 19 above).
Moreover, although the applicant was in receipt of both the EWK pension and a salary for ten years and some eight months, the State did not require her to return the amount of the pension which had been unduly paid (see paragraphs 7 and 18 above).
28. The principle of good governance is of particular importance and it is desirable that public authorities act with the utmost care and speediness, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other such rights (see Antoni Lewandowski, cited above, § 80). It is true that the authorities, in particular the courts, reviewed the applicant’s case over a relatively long period of time. However, as already noted above, throughout these proceedings the applicant was employed.
29. In view of the foregoing, it cannot be said that the authorities’ decisions placed on the applicant an excessive burden incompatible with Article 1 of Protocol No. 1 to the Convention (see Rzepa, cited above, §§ 31–-37). The applicant’s case is therefore clearly distinguishable from the facts of the leading case concerning EWK pensions, Moskal v. Poland.
30. 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
31. The applicant also alleged violations of several other provisions of the Convention (see paragraph 21 above).
32. However, the Court considers that any issues that may be raised by the applicant under those provisions have already been adequately addressed above (see paragraphs 24–30 above).
33. In any event, in all the previous cases examined to date, the Court considered that the complaints under Articles 6 and 8 of the Convention and Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention either did not require separate examination or should be dismissed as manifestly ill-founded (see, among many other examples, Moskal, §§ 77–101 and Antoni Lewandowski, §§ 86–88, cited above; see also paragraph 22 above).
34. It follows that the remainder of the application must likewise be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy