FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 30263/04
by Urszula TEREBA
against Poland
The European Court of Human Rights (Fourth Section), sitting on 21 November 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Registrar,
Having regard to the above application lodged on 29 July 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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
The applicant, Ms Urszula Tereba, is a Polish national who was born in 1983. She is represented before the Court by her mother, Ms Danuta Tereba. The respondent Government are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1996 the applicants’ parents divorced. Under the divorce judgment her father was obliged to pay maintenance to the applicant in the amount of PLN 600 per month. As apparently he had been persistently failing in his obligation, on an unspecified later date the applicant became entitled to payments from the Maintenance Fund.
In 2002 the applicant graduated from secondary school, having sat an International Baccalaureate. In 2002 she was admitted to the faculty of economics at a university in Milan and granted a scholarship. The scholarship apparently covered the costs of tuition and accommodation in a student residence.
By a decision of 20 September 2002 the social insurance authorities decided that the applicant’s rights to the maintenance payments from the Fund should be withdrawn on the ground that the relevant statute, the 1974 Maintenance Fund Act, provided that persons who had left the country lost their entitlement after two months’ absence.
The applicant appealed. She argued that the taking away of her entitlement solely on the ground that she had chosen to study abroad could not be justified. The provisions of the 1974 Act as applied in her case frustrated her desire to obtain the best possible education and unreasonably penalised her for her academic excellence and her ambitions. The Act’s provisions were clearly outdated and did not correspond to the justified and legitimate educational needs of today’s Polish youth. She also referred to the judgment of the Katowice Court of Appeal (III A Ua 933/00). That court had held that the fact that a person entitled to payments from the Fund had left Poland to study abroad for a period longer than two months did not justify the removal of his or her entitlement. She requested the court to set aside the decision.
On 14 May 2003 the Warszawa-Praga District Court quashed the contested decision, finding, inter alia, that it was obviously unfair. It noted that the applicant had obtained excellent academic results and that the possibility to study abroad was a reward for her. It considered that she should not be penalised by the removal of her social security entitlement. The court further referred to the judgment of the Katowice Court of Appeal, relied on by the applicant in her appeal.
The Social Insurance Authority appealed, referring to Article 11 of the 1974 Act.
In her pleadings in reply, the applicant reiterated her reasoning contained in her earlier appeal. She also submitted that she was in a difficult financial situation. Her mother’s monthly income was PLN 2,200; PLN 1,360 after tax. [1] The applicant had received a scholarship but only for the academic year 2002/2003; it was not certain whether she would continue to receive it the following year. The scholarship covered only the costs of the student’s accommodation and tuition; it was not paid to the student in cash. All living expenses had to be paid by the applicant herself. Her mother had already taken out a loan in the amount of PLN 8,000 to cover the costs of her travel and, generally, of her installation in Milan, including a deposit in the amount of EUR 1,614. She was reimbursing this loan in monthly instalments of PLN 120.
On 15 December 2003 the Warsaw Court of Appeal allowed the appeal and quashed the first-instance judgment.
In the written grounds of this judgment, prepared at the request of the Social Insurance Authority and served on it on 29 December 2003, the Court referred to the text of section 11 of the 1974 Act, which provided that a person entitled to payments from the Fund lost his or her entitlement solely on the strength of the fact that he or she remained abroad for over two months. In the court’s opinion the decision of the first-instance court had therefore to be quashed. The court further observed that the judgment of the Katowice Court of Appeal, relied on by the applicant, was of no significance for the case under examination, as it concerned only persons who were studying abroad within the framework of organised school exchanges. The court was of the view that this judgment was irrelevant to the legal assessment of the applicant’s situation.
On an unspecified date in January 2004 the applicant requested that the written grounds for the judgment be served on her. Her request was complied with on 12 February 2004.
B. Relevant domestic law
1.The individual constitutional complaint
Article 79 § 1 of the Constitution, which entered into force on 17 October 1997, provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
Article 190 of the Constitution, insofar as relevant, provides as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”
Initially the complaint had to be lodged within two months from the date on which the final decision was served on the party (Article 46 § 1 of the Constitutional Court Act). This time-limit was subsequently extended to 3 months with effect from 8 October 2000.
Article 39 of the Constitutional Court Act reads:
“1. The Court shall, at a sitting in camera, discontinue the proceedings:
1) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible;
2) in consequence of the withdrawal of the application, question of law or constitutional complaint;
3) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the Tribunal.
2. If these circumstances come to light at the hearing, the Tribunal shall make a decision to discontinue the proceedings.
3. Item 1 (3) of the present Section does not apply if giving a decision on the compatibility with the Constitution of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights.”
2.Re-opening of civil proceedings following a judgment of the Constitutional Court
Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the date of the judgment of the Constitutional Court.
3.Case-law of the Constitutional Court concerning the temporal scope of its jurisdiction
The Court has on many occasions examined the temporal scope of its jurisdiction. It held, for example, in its judgment of 18 November 1998 (SK 1/98) that:
“[t]he repealing of a legal provision cannot always be identified with this provision losing its binding force in its entirety. Only an analysis of the repealed provision read together with the transitional provisions of the relevant act can provide an answer to the question whether this provision had lost its binding force in the sense that it cannot be applied any more. (...) Consequently, if the repealed provision can still be applied to any past, present or future situation, it cannot be said to have lost its binding force and there are no grounds on which the proceedings before the Constitutional Court should be discontinued.”
In its judgment of 14 November 2000 (SK 7/200) the Court stated that:
“[u]nder the established case-law, a normative act loses its binding force when it cannot be applied to any past, present or future situation. (...) The interpretation of the phrase “lost its binding force” should aim at the determination of whether a legal norm in question has been removed from the legal order not only in the formal sense, but also whether it still affected the legal situation of individuals.”
4.The Maintenance Fund Act 1974
Under section 4 of the Maintenance Fund Act of 1974, persons who obtained a judicial decision that maintenance should be paid to them, were entitled to payments from the Fund if the persons obliged to pay maintenance had persistently failed to do so.
Pursuant to section 11 of the Act, the social insurance authorities were obliged to stop making maintenance payments from the Fund if a person entitled to maintenance had remained abroad for more than two months.
The 1974 Act was repealed by the Act of 28 November 2003. It was to lose its binding force on 1 May 2004.
COMPLAINT
The applicant complained under Article 1 of Protocol No. 1 to the Convention read together with Article 14 of the Convention that the final judgment was blatantly unfair in that her social assistance entitlements were taken away. It was thanks to her constant efforts and academic talents that she had achieved the possibility of studying abroad, which would considerably enhance her prospects. It was not in dispute that she was entitled to receive maintenance payments from the Fund. After she had started to study at the Italian university, she lost her entitlement solely on the ground that she had left Poland.
The decision to take her social assistance entitlement away penalised her for the fact that she had chosen to study abroad. Had she chosen to study in Poland, she would still be entitled to receive maintenance. This by itself was discriminatory and impossible to justify in the light of present-day conditions in Poland, particularly after Poland’s accession to the European Union. The decisions given in her case were clearly incompatible also with European Union law insofar as it guarantees freedom of movement for students.
THE LAW
The applicant complained under Article 1 of Protocol No. 1 to the Convention read together with Article 14 of the Convention that the final judgment had been blatantly unfair in that her social assistance entitlements had been taken away solely on the ground that she had chosen to study and live abroad.
Article 1 of Protocol No. 1 to the Convention reads:
“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.”
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.
A. Alleged failure to comply with the six-month rule
The Government submitted that the application had been introduced outside the six-month period imposed by Article 35 § 1 of the Convention.
They argued that the final judgment had been issued on 15 December 2003. The applicant’s representative had attended the hearing. The court had been obliged to prepare written grounds for the judgment. These grounds had been served on the social insurance authority on 29 December 2003 at its request. The applicant had not requested that such grounds be prepared. Hence, the six-month requirement had not been satisfied, her application having being lodged on 29 July 2004.
The applicant argued that the written grounds for the second-instance judgment had had to be prepared ex officio and that the court had duly done so. She had received a copy of the judgment together with its written grounds on 12 February 2004, having requested to be served with them in January 2004. Accordingly, the six-month time-limit should be counted from that date. Her application had been brought within that period.
The applicant referred to the Court’s case-law arguing that where the reasons given for the decision were relevant to the application, the six month period would ordinarily be taken to run from the date on which the full reasons for the decision had been given, and not the date on which the applicant or his legal adviser had been notified merely of the operative part of the decision (e.g. Eur. Comm. HR, No. 9299/81, Dec. 13.3.84, DR 36, p. 20).
The Court notes that the applicant requested the Court of Appeal to serve on her promptly the written grounds for the judgment of 29 December 2003. Having regard to the close link between the written grounds of that judgment in which the court set out the legal and factual grounds on which it had based its ruling and the essence of the applicant’s complaint submitted under Article 34 of the Convention, the Court accepts that the six-month period started to run on 12 February 2004, the date on which the applicant was served with these grounds.
It follows that the application cannot be declared inadmissible for failure to comply with the six-month requirement within the meaning of Article 35 § 1 of the Convention.
B. Exhaustion of domestic remedies
a)The Government further argued that the applicant had failed to exhaust all the remedies available under Polish law as required by Article 35 § 1 of the Convention.
They were of the view that in the circumstances of the case a constitutional complaint constituted an effective, sufficient and available domestic remedy. They referred to the Court’s relevant case-law (Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; Pachla v. Poland (dec.), no 8812/02, 8 November 2005). They submitted that the applicant could have challenged in particular the compatibility with the Constitution of section 11 § 1 of the 1974 Act which had constituted a direct legal basis for the final judgment in her case. Had the applicant obtained a judgment of the Constitutional Court in her favour, it would have opened the way for her to seek a re-opening of the proceedings in her case, having regard to the provisions of Article 190 § 4 of the Constitution and Article 401 1 of the Code of Civil Procedure.
The applicant disagreed, stating that this remedy was not a relevant one in the circumstances of the case.
The Court has already dealt with the question of the effectiveness of the Polish constitutional complaint (see Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003; Pachla v. Poland (dec.), no 8812/02, 8 November 2005; Wypych v. Poland (dec.), no. 2428/05, 25 October 2005). It examined its characteristics and in particular found that the constitutional complaint was an effective remedy for the purposes of Article 35 § 1 of the Convention in situations where the alleged violation of the Convention resulted from the direct application of a legal provision considered by the complainant to be unconstitutional.
In the instant case, the Court observes that the alleged breach of the Convention can be said to have arisen from section 11 of the 1974 Act since it was the application of this provision by the Warsaw Regional Court which served as a direct legal basis for the withdrawal of her entitlement to maintenance payments from the Maintenance Fund. Hence, the Court is of the view that a constitutional complaint was a relevant remedy in her situation.
b)However, in examining whether a constitutional complaint was a remedy to which the applicant should have had recourse, regard must also be had to the fact that the Maintenance Fund Act 1974 was repealed on 28 November 2003 and that it was to lose its binding force on 1 May 2004.
In the applicant’s case, the judgment of 15 December 2003 was served on her on 12 February 2004. She could have submitted a constitutional complaint in connection with this judgment within three months of that date.
In that connection, the Court notes that section 39 § 1 of the Constitutional Court Act stipulates that that court shall discontinue the examination of a case if the challenged normative act has ceased to have effect prior to the delivery of a judicial decision by that court. In these circumstances, the Court must consider whether there was a possibility that a constitutional complaint in the applicant’s case would have been examined by the Constitutional Court.
The Court first observes that the case-law of the Constitutional Court itself is relevant for the assessment of the question of whether the applicant should have lodged a constitutional complaint. It notes that the Constitutional Court has repeatedly held that the mere fact that a normative act has been repealed did not mean that it ceased to have effect within the meaning of section 39 § 1 of the Constitutional Court Act. In such cases, it continued the examination of the challenged legal provisions. When examining whether proceedings concerning a repealed act should be discontinued or pursued, it had regard to the legal effects produced by such an act even after its repeal.
In the present case, the 1974 Act was repealed on 28 November 2003, but produced legal effects, i.e. constituted a legal basis for payments from the Maintenance Fund, until 1 May 2004.
The Court further notes that under section 39 § 3 of the Constitutional Court Act it is open to the Constitutional Court to pursue the examination of a constitutional complaint brought against an act which had been repealed if it considers that it is necessary for the protection of the constitutional freedom and rights.
Lastly, the Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see, among other authorities, Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 37; A.B. v. the Netherlands, no. 37328/97, 29 January 2002, § 72).
In conclusion, having regard to the above considerations, the Court is of the view that it cannot be said that the fact that the Act was repealed in November 2003 would have automatically entailed a subsequent discontinuation by the Constitutional Court of the proceedings instituted by a constitutional complaint challenging the provisions of that Act insofar as it regulated the entitlement to maintenance for persons who had moved abroad.
Consequently, the Court finds that by failing to lodge a constitutional complaint against section 11 of the Maintenance Fund Act 1974, the applicant failed to exhaust the remedy provided for by Polish law. The Government’s objection that the constitutional complaint was not employed by the applicant in the instant case is therefore well-founded.
It follows that the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares the application inadmissible.
T.L. EarlyNicolas Bratza
RegistrarPresident
[1] Approximately EUR 347.
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