FOURTH SECTION
DECISION
Application no. 342/05
Maria SMOŁA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 5 December 2013 as a Committee composed of:
George Nicolaou, President,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 16 December 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Maria Smoła, is a Polish national, who was born in 1962 and lives in Rzemień.
2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant has one child. Prior to her application for an EWK pension she had been employed since 1982 by the same employer.
1. Proceedings concerning the grant and revocation of the EWK pension
5. On 25 October 2000 the applicant filed an application with the Rzeszów 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.
6. 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 medical centre. The certificate stated that the child (born in 1989) suffered from bronchial asthma, allergies and a congenital eye disorder (wrodzona wada gałek ocznych) and was in need of the parent’s constant care.
7. On 8 February 2001 the SSB issued a decision granting the applicant the right to an early‑retirement pension in the net amount of around 600 Polish zlotys (PLN) per month. In addition to the EWK pension the applicant received family allowance and nursing benefit which, together with the pension, amounted to PLN 752 net per month.
8. The SSB initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. Shortly afterwards the applicant informed the SSB of her resignation with effect from 27 February 2001. The payment of the pension started on 1 February 2001.
9. On 1 May 2002 the applicant took up employment.
10. On 13 June 2002 the SSB requested 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 17 June 2002 the doctor stated that, on the basis of the medical documents, the child in question could not be considered as ever having required such care.
11. On 21 June 2002 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 with immediate effect (1 July 2002). By virtue of the second decision, the Board reopened the proceedings, revoked the initial decision granting a pension 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”).
12. 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 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.
13. On 9 April 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. Medical experts appointed by the court found that the applicant’s daughter was not, and had never been, in need of her parents’ constant care. The 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.
14. The applicant lodged an appeal against the first-instance judgment which was dismissed on 24 October 2003 by the Rzeszów Court of Appeal (Sąd Apelacyjny).
15. On 27 November 2003 the Ombudsman lodged a cassation appeal with the Supreme Court (Sąd Najwyższy) on the applicant’s behalf. The Ombudsman argued that the reopening of proceedings by the SSB was contrary to section 114 of 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”) as it was not based on any newly submitted evidence or newly discovered circumstances within the meaning of this provision. The Ombudsman further considered that divesting the applicant of her acquired right to early-retirement in such circumstances had been contrary to the principle of the rule of law.
16. On 7 May 2004 the Supreme Court dismissed the cassation appeal. The Supreme Court stressed that in the applicant’s case the decision of the SSB had been based on new evidence i.e. on the child’s medical documentation. On this basis, the SSB had established that the applicant had not been entitled to the EWK pension. Therefore, the authority had not only been allowed but had even been obliged to reopen the proceedings in her case. Lastly, the Supreme Court stated that the doctrine of vested rights did not apply to rights acquired unjustly, for example when a person had been granted a right to a pension, whereas in fact he or she had never met the requirements laid down in the relevant provisions.
17. On 28 June 2004 the judgment and its reasoning were served on the applicant.
2. 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 Government submitted that the applicant had resumed employment on 1 May 2002. She had been employed at the time when the pension had been revoked. In the period from 2003 until 2008 she had either been employed on the basis of temporary and private law contracts (umowa zlecenie) or in receipt of an unemployment benefit. She had started working on the basis of a permanent employment contract in 2009. In addition, they submitted that she had been receiving child‑support payment in the amount of PLN 300 per month. The applicant’s daughter had taken up employment in 2009.
20. The applicant did not dispute the Government’s submission that she had been employed at the time when the EWK pension was revoked. She submitted that after the revocation of the EWK pension her financial situation had been difficult and that she had been divested of a significant part of her income. She did not provide any detailed information as regards her employment and income. She only stated generally that her income had been below the level of average gross salary in Poland.
B. Relevant domestic law and practice
21. 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).
COMPLAINTS
22. The applicant complained under Article 6 of the Convention and, in essence, 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
23. 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. The Government’s objections
24. The Government raised several objections to the admissibility of the case. They submitted that the application constituted an abuse of the right of individual application. They also argued that the applicant had failed to comply with the six‑month rule as the final judgment in her case was given by the Supreme Court on 7 May 2004 and the applicant lodged her application with the Court on 16 December 2004.
The applicant disagreed with the Government.
25. As regards non-compliance with the six-month rule, the Court reiterates that, where the reasons for a final decision are relevant for the application to the Court, the six-month time-limit runs from the date on which the full text with reasoning is received by the applicant or his or her lawyer (see, mutatis mutandis, Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997‑V). Accordingly, as in the present case the applicant was served the Supreme Court’s judgment with reasoning on 28 June 2004 (see paragraph 18 above), the Court considers that the six-month time-limit should be calculated from that date. That being so, the applicant complied with the six-month term laid down in Article 35 § 1 and the Government’s objection should therefore be dismissed.
26. The Court further notes that it has already examined identical objections regarding abuse of the right of individual application, and dismissed them, in the follow‑up cases to Moskal (see, for instance, Antoni Lewandowski, cited above, §§ 45‑53). It sees no reason to depart from its previous findings.
B. Article 1 of Protocol No. 1 to the Convention
1. The parties’ submissions
27. The Government maintained that the application was manifestly ill‑founded. They submitted 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. They further noted that even though the decision to revoke the EWK pension had had a retroactive effect, the applicant had not been required to reimburse the sum of PLN 12,755 already paid to her.
28. The Government also underlined that the applicant had resumed employment while she had been in receipt of the EWK pension and that she had continued working after the revocation of the pension.
29. The applicant submitted that divesting her of her acquired right to an early-retirement pension had amounted to an unjustified deprivation of property. She maintained that it had not been forbidden under the domestic law for an individual to work while in receipt of an EWK pension as the child’s care could have been provided by another member of the family or hired help. The applicant claimed that she had borne an excessive burden in that the decision of 21 June 2002 had deprived her of her main source of income with immediate effect.
2. The Court’s assessment
30. 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).
31. 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).
32. 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).
33. 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 Rzepa v. Poland (dec.), no. 30361/04, 9 April 2013, § 34). Nor did she permanently resign from her job after her right to the EWK pension had been confirmed by the authorities; indeed, she resumed employment some two months before her right to the EWK pension was revoked (see paragraphs 9, 19 and 20 above). Moreover, although the applicant was in receipt of both the EWK pension and a salary for those two months, the State did not require her to return the amount of the pension which had been unduly paid (see paragraphs 18 and 27 above).
34. It is true that, in contrast to several other previously examined similar cases (see, for instance, Rzepa, cited above, § 19) in the present case the Court does not dispose of the exact information of the nature and the duration of the applicant’s employment or of her income. However, the applicant at no stage contested the Government’s submissions in this respect (see paragraph 20 above), nor did she produce any information or documents in this connection. It has been established clearly that the applicant had another source of income at the time when her pension was revoked (compare and contrast Antoni Lewandowski, cited above, § 82).
35. 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 either employed or in receipt of unemployment benefit.
36. 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.
37. 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
38. The applicant also alleged violation of Article 6 of the Convention (see paragraph 22 above).
39. However, the Court considers that any issues that may be raised by the applicant under this provision have already been adequately addressed above (see paragraphs 30–37 above).
40. In any event, in all the previous cases examined to date, the Court considered that the complaints under Article 6 of the Convention did not require separate examination (see, among many other examples, Moskal, §§ 77‑83 and Antoni Lewandowski, §§ 86‑88, cited above; see also paragraph 23 above).
41. 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 AracıGeorge Nicolaou
Deputy RegistrarPresident
Full & Egal Universal Law Academy