Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23935/94 Application No. 25034/94

by Wojciech JANKOWSKI by U. S.- W.

against Poland against Poland

The European Commission of Human Rights sitting in private on

16 October 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 December 1994 by

Wojciech JANKOWSKI against Poland and registered on 21 April 1994 under

file No. 23935/94 and to the application introduced on 30 April 1994 by

U. S.-W. against Poland and registered on 30 August 1994 under

file No. 25034/94;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

FACTS

The facts of the case, as submitted by the applicants, may be

summarised as follows:

Application 23935/94

The applicant, a Polish citizen born in 1946, is a retired dancer

residing in Warsaw.

In 1973 the applicant concluded a contract with the Social Insurance

authorities, providing for payment of additional contributions towards

the social security scheme with a view to obtaining an increase by 15 per

cent in his future retirement pension.

In April 1991 the applicant retired. The Social Insurance

authorities calculated his retirement pension on the basis of his income

and additional contributions paid since 1973 until the date of

retirement. The pension was calculated on the assumption that the

applicant's income on retirement was equivalent to 364.18 per cent of the

average salary. The decision of the Social Insurance provided for the

applicant's entitlement to a pension of 4,194,200 zlotys per month.

On 15 December 1991 the Social Insurance authorities issued a new

decision, in accordance with the amendment to the Retirement Pensions Act

of 17 October 1991, according to which as from 1 January 1992 the

applicant was entitled to 1,929,800 zlotys per month. This pension was

calculated on the assumption that the applicant's income on retirement

had not exceeded a maximum level of 250 per cent of an average salary.

The decision also deprived the applicant of the 15 per cent supplement

to the pension, due to him by virtue of his additional contributions.

The applicant appealed against this decision to the Warsaw Regional

Court (S*d Wojewódzki). He complained that his retirement pension had

been reduced and recalculated according to generally applicable rules,

regardless of the fact that he had been paying additional voluntary

contributions for many years. He indicated that the decision violated

his constitutional right to property.

On 14 April 1992 the Warsaw Regional Court dismissed the applicant's

appeal. The Court found that the decision was in conformity with the

Retirement Pensions Act as amended on 17 October 1991.

The applicant filed an appeal with the Warsaw Court of Appeal (S*d

Apelacyjny). He indicated that from 1974 until 1991 he had paid

additional voluntary contributions to the Social Insurance fund in order

to secure his entitlement to a higher pension. This increased pension

was intended to compensate for the fact that the applicant, due to the

nature of his profession, could not work for long periods and thereby

gain entitlement to a higher pension. He complained that the impugned

decision violated his property rights as his retirement pension did not

in any way correspond to the increased contributions which he had paid.

On 6 October 1992 the Warsaw Court of Appeal dismissed the

applicant's appeal as the calculation of the applicant's retirement

pension was in conformity with the Retirement Pensions Act as amended on

17 October 1991.

Application 25034/94

The applicant, a Polish citizen born in 1934, is a retired opera

singer, residing in Warsaw.

In 1973 the applicant concluded a contract with the Social Insurance

authorities, providing for payment of additional contributions towards

the social security scheme with a view to obtaining an increase by 15 per

cent in her future retirement pension.

In February 1990 the applicant retired. The Social Insurance

authorities calculated her retirement pension on the basis of her income

and additional contributions paid since 1973 until the date of

retirement. The pension was calculated on the assumption that the

applicant's income on retirement was equivalent to 364.18 per cent of the

average salary. The decision of the Social Insurance authorities

provided for the applicant's entitlement to a pension of 4,528,434

zlotys.

On 15 December 1991 the Social Insurance authorities issued a new

decision, in accordance with the Retirement Pensions Act as amended on

17 October 1991, according to which as from 1 January 1992 the applicant

was entitled to a pension of 2,176,000 zlotys. This pension was

calculated on the assumption that the applicant's income at the time of

retirement was equal to the maximum level of 250 per cent of the average

salary. The decision also deprived the applicant of the 15 per cent

supplement to the pension, due to her by virtue of her additional

contributions.

The applicant appealed against this decision to the Warsaw Regional

Court. She complained that her retirement pension was reduced and

calculated according to the generally applicable rules, regardless of the

fact that she had paid additional contributions for seventeen years.

Thus, she had been deprived of her entitlement to the additional 15 per

cent supplement to the pension, which amounted to a deprivation of her

property rights. She indicated that her additional contributions had

been paid to her own account with the Social Insurance authorities,

stressing that the sums accumulated on this account constituted her

personal investment and were therefore her property.

On 24 April 1992 the Warsaw Regional Court dismissed the applicant's

appeal. The Court found that the decision was in conformity with the

Retirement Pensions Act as amended on 17 October 1991.

The applicant filed an appeal with the Warsaw Court of Appeal. She

submitted that from 1974 until 1990 she had paid voluntary additional

contributions to the Social Security in order to secure entitlement to

a higher pension. She complained that the impugned decision breached her

property rights as her retirement pension did not in any way correspond

to the increased contributions.

On 8 January 1993 the Warsaw Court of Appeal dismissed the

applicant's appeal as the calculation of the applicant's retirement

pension was in conformity with the Retirement Pensions Act as amended on

17 October 1991.

COMPLAINTS

The applicants complain under Article 6 para. 1 of the Convention

that the outcome of the proceedings concerning their retirement pensions

was unfair.

The applicants complain under Article 1 of Protocol No. 1 that they

were deprived of their property rights in that their retirement pensions,

calculated in accordance with the Retirement Pensions Act, do not in any

way reflect the increased contributions which they paid to the Social

Insurance fund for seventeen years. They contend that this is a

continuing situation of deprivation of their property rights.

THE LAW

1. The Commission finds it necessary to join the applications under

Rule 35 of its Rules of Procedure.

2. The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that the outcome of the proceedings concerning their

retirement pensions was unfair.

The Commission recalls that Poland recognised the competence of the

Commission to receive individual applications "from any person, non-

governmental organisation or group of individuals claiming to be a victim

of a violation of the rights recognised in the Convention through any

act, decision or event occurring after 30 April 1993". The Commission

is not competent to examine complaints relating to violations of the

Convention by acts, decisions or events that have occurred prior to this

date.

In the present case, the court proceedings concerning the

applicant's complaints against the decisions of the Social Insurance

authorities of 15 December 1991 came to an end before 1 May 1993. It

follows that this part of the applications is outside the competence

ratione temporis of the Commission and therefore incompatible with the

provisions of the Convention within the meaning of Article 27 para. 2.

3. The applicants further complain under Article 1 of Protocol No. 1

(P1-1) that they were deprived of their property rights. They contend

that the reduction of their pensions created a continuing situation of

deprivation of their property rights.

Article 1 of Protocol No. 1 (P1-1) provides:

"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."

It is true that, according to the Convention organs' case-law, the

making of contributions to a pension fund may, in certain circumstances,

create a property right in a portion of such fund and such right may be

affected by the manner in which the fund is distributed (No. 4130/69,

Yearbook 14, pp. 224 and 240 et seq.; No. 5849/72, Dec. 16.12.74, D.R. 1,

p. 46; No. 9776/82, Dec. 3.10.83, D.R. 34, p. 153; No. 12264/86,

Dec. 13.7.88, D.R. 57, p. 131).

The Commission nevertheless recalls that Poland ratified Protocol

No. 1 (P1) to the Convention on 10 October 1994. In accordance with the

generally recognised principles of international law, the Commission is

not competent to examine complaints relating to alleged violations of the

Protocol by acts, decisions or events that have occurred prior to this

date.

The Commission observes that in the present case the amendment to

the Retirement Pensions Act, which reduced the applicants' entitlement

to the supplementary benefits acquired on the basis of their additional

voluntary contributions, was passed on 17 October 1991. The decisions

of the Social Insurance recalculating the applicants' pensions in

accordance with this amendment were taken on 15 December 1991. The final

court judgments which upheld these decisions as being in conformity with

the law were pronounced on 6 October 1992 and on 8 January 1993. These

acts all occurred prior to 10 October 1994, i.e. the ratification by

Poland of Protocol No. 1 (P1) to the Convention. Insofar as the

applicants complain that these acts created a continuing situation of

deprivation of their property rights, the Commission recalls that

deprivation of property rights is in principle an instantaneous act and

does not produce a continuing situation of "deprivation of property"

(No. 7742/76, Dec. 4.7.78, D.R. 14, p. 146; No. 26078/94, Dec. 17.5.95,

unpublished).

It follows that this complaint is also outside the competence

ratione temporis of the Commission and therefore incompatible with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

For these reasons, the Commission, unanimously,

1. DECIDES TO JOIN THE APPLICATIONS,

2. DECLARES THE APPLICATIONS INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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JANKOWSKI, U.S. W. v. POLAND

JANKOWSKI, U.S. W. v. POLAND

LEXI