FOURTH SECTION

DECISION

Application no . 19186/10 Janina ZIMA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 2 5 August 2015 as a Chamber composed of:

Guido Raimondi , President, Päivi Hirvelä , Ledi Bianku , Nona Tsotsoria , Paul Mahoney , Krzysztof Wojtyczek , Faris Vehabović , judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 2 April 2010 ,

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 Janina Zima, is a Polish national, who was born in 1960 and lives in Ropczyce .

2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska , of the Ministry of Foreign Affairs.

A. The circumstances of the case

3. The facts of the cas e, as submitted by the parties , may be summarized as follows.

1. Proceedings before the Social Security Board

(a) Granting of the “EWK” pension

4. On 28 November 1997 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, she submitted, among other documents concerning her son ’ s health, a medical certificate issued by a specialist doctor on 3 November 1997. The certificate stated that the child (born in 1988) suffered from hypothyroidism ( niedoczynność tarczycy ) and was in need of the parent ’ s constant care.

6. On 16 December 1997 the SSB issued a decision granting the applicant the right to an early ‑ retirement p ension in the net amount of 377 Polish zlotys (PLN) per month, starting from 1 November 1997.

7. The applicant was issued with a pensioner ’ s identity card marked “valid indefinitely” and she continued to receive her pension without interruption until the date of the revocation of the right.

(b) Revocation of the “EWK” pension

8. On 13 July 2009 the SSB reviewed the applicant ’ s pension application under section 114 (1a) 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”).

9. The SSB requested the Main Social Security Board ’ s doctor ( Główny Lekarz Orzecznik ) to inform it whether the applicant ’ s son required the permanent care of a parent. On 15 July 2009 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.

10. On 17 July 2009 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 August 2009. By virtue of the second decision, the Board revoked the initial decision of 16 December 1997 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”).

2. Proceedings before the court s

11. The applicant appealed against the above-mentioned decision 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.

12. On 2 December 2009 the Rzeszow Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s appeal. On the basis of a report on the state of health of the applicant ’ s child prepared by an expert in endocri nology the court found that the applicant ’ s son had not required, as of 28 November 1997, a constant care of his mother. It held that the proceedings had been reopened by the SSB in accordance with section 114 of the 1998 Law and the applicant had been rightfully divested of her right to a n EWK pension .

13. On 10 February 2010 the Rzeszów Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant ’ s appeal against the first-instance judgment . It agreed with the first-instance courts ’ findings of fact. As regards the reopening of the proceedings , it observed that the SSB had acted in accordance with section 114 of the 1998 Law. In that context, it referred, in particular, to paragraph 1a of this provision which explicitly allowed the SSB to reopen the proceedings if it came to light that the submitted evidence had not constituted sufficient grounds for the right to the pension to be established. It also noted that, in the applicant ’ s case, the proceedings had been reopened because new evidence had bee n obtained by the authority, namely the documents relating to the course of the child ’ s medical treatment .

14. The applicant did not lodge a cassation appeal with the Supreme Court ( Sąd Najwyższy ).

15. Nor did she lodge a request for the reopening of judicial proceedings in her case on the basis of the judgment of the Constitutional Court ( Trybuna Å‚ Konstytucyjny ) of 28 February 2012 declaring section 114(1a) of the 1998 Law unconstitutional (see paragraphs 22-27 below).

B. Relevant domestic law and practice

1. Social security system

16. 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 .

2. Section 114(1a) of the 1998 Law

17. By virtue of the law of 20 April 2004 on amendments to the law of 1998 on retirement and disability pensions paid from the Social Insurance Fund and to certain other acts ( Ustawa o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych oraz niektórych innych ustaw – “the 2004 Act”), which entered into force on 1 July 2004, a new paragraph 1a was added to section 114 of the law. The amended section 114 of the 1998 Law provided as follows:

“1. The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio , if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances, which had existed before issuing the decision and which have an impact on the right to benefits or on their amount, are discovered.

1a. Paragraph 1 applies if after the validation of the decision it comes to light that the submitted evidence did not constitute sufficient grounds for the right to the retirement pension or disability pension or for their amount to be established.”

3 . Supreme Court ’ s practice

18. On 5 June 2003, before paragraph 1a was added to section 114 of the 1998 Law, the Supreme Court adopted a resolution in which it held:

“A different assessment of the [same] evidence as attached to the application for a retirement or disability pension, carried out by a social security authority after validation of the decision awarding the right to a pension, is not one of the circumstances justifying the ex officio re-opening of the proceedings for a review of the right to a pension in accordance with section 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund.”

19. In a judgment given on 21 September 2010 (case no. III UK 94/09 ) the Supreme Court held that, when applying section 114(1) of the 1998 Law, the domestic courts should take into account the criteria set out in the Court ’ s judgment in the Moskal case. They should first establish whether the mistake in granting a social security benefit had been caused by the authorities themselves without any fault of the person concerned. In examining whether the social security authority was allowed to reopen the proceedings, they should also take into account the period of time that had elapsed from the date when the social benefit in question had been granted. When applying the provision of domestic law they should assess the proportionality of the consequences of the interference with an individual ’ s right to a social benefit. Accordingly, where the mistake had been caused by the authorities themselves and the revocation of the benefit would entail substantial negative consequences for an individual, the relevant decision should not be revoked.

20. In a judgment of 24 March 2011 (case no. I UK 317/10 ) the Supreme Court reiterated that the revocation of the right to a social security benefit following the reopening of the proceedings under section 114 of the 1998 Law should be assessed in the light of the criteria set out in the Court ’ s judgment in the Moskal case. In this connection the Supreme Court underlined that the European Convention on Human Rights constituted an integral part of the Polish legal system and that the domestic courts should therefore interpret the provisions of the domestic law in the light of the jurisprudence of the Court.

21. In a judgment of 5 April 2011 (case no. III UK 92/10 ) the Supreme Court held that section 114(1a) of the 1998 Law should not be interpreted as providing a separate legal basis for reopening of the proceedings concerning the grant of a social security benefit and should be read in conjunction with section 114(1). If this provision was to be understood as allowing the social security authority to reopen the relevant proceedings of its own motion merely on the basis of a new assessment of previously submitted evidence, it would have to be considered incompatible with the principle of the rule of law set forth in Article 2 of the Constitution . The Supreme Court considered that its interpretation of the provisions of the 1998 Law was further supported by the principles set out in the Moskal judgment of the Court.

4. Constitutional Court ’ s jud gment of 28 February 2012 (case no. K 5/11)

22. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114(1a) of the 1998 Law to be declared unconstitutional. The Ombudsman argued that the impugned provision was unconstitutional in so far as it expressly allowed for an ex officio reopening of proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of the evidence which had already been submitted before the relevant authority.

23. On 28 February 2012 the Constitutional Court held that section 114(1a) of the 1998 Law was in breach of Article 2 (the principle of the rule of law) and Article 67 § 1 (the right to social security) of the Constitution. It found that, as the provision in question allowed for an unlimited re-assessment of evidence which constituted grounds for the initial decision concerning the entitlement to a social security benefit, it was in breach of the principle of the rule of law as set forth in Article 2 of the Constitution.

24. Furthermore, the Constitutional Court found that the provision in question did not strike a fair balance between the general interest and an individual ’ s right to social security under Article 67 § 1 of the Constitution . The court considered that an interference with individual rights guaranteed by Article 67, which pursued the aim of correcting the authority ’ s own mistake, could only be justified under exceptional circumstances. However, on the basis of the impugned provision the social security authority could, at any time and without any limitations, review the decision concerning a social security benefit by means of re-assessment of the evidence before it.

25. In the grounds for the ruling the Constitutional Court also referred to the Court ’ s Moskal judgment. It noted that this case had likewise concerned a revocation of the right to a social security benefit following the reopening of the social security proceedings, which had been, however, based on section 114(1) of the Law 1998 as section 114(1a) had not been in force at the material time. It further observed that the Court ’ s judgment had influenced the interpretation of section 114(1) of the 1998 Law by the Supreme Court (see paragraphs 19- 21 above).

26. Lastly, with regard to the consequences of its ruling, the Constitutional Court noted that the breach of Constitution should be remedied by restoring the state of conformity with the law ( wymaga przywrócenia stanu zgodnego z prawem ). In that context, the Constitutional Court explicitly stated that the finding of unconstitutionality of section 114(1a) of the 1998 Law should be a ground for the reopening of proceedings in which final rulings had been based on this provision.

27. On 8 March 2012 the judgment was published in the Journal of Laws of the Republic of Poland ( Dziennik Ustaw ) and entered into force on that date.

5 . Provisions relating to the consequences of the rulings of the Constitutional Court

(a) Constitution

28 . Article 190 of the Constitution, in so far 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 immediately.

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...

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 judicial decision, final administrative decision or ruling on other matters was given, shall be a basis for reopening proceedings, or for quashing the impugned decision or ruling in a manner and on principles specified in provisions applicable to the given proceedings.”

(b) Code of Civil Procedure

29. In accordance with Article 399 read in conjunction with Article 401 1 of the Code of Civil Procedure ( Kodeks Post Ä™ powania Cywilnego ) a party to civil proceedings terminated by a final judgment may request that these proceedings be reopened, if the Constitutional Court has found that the normative act on the basis of which this judgment was given was incompatible with the Constitution.

30. Pursuant to Article 407 § 2, a request to that effect shall be lodged within three months from the date on which the judgment of the Constitutional Court has entered into force. Pursuant to Article 408 a request for the reopening of the proceedings must be lodged within five years from the date on which the final judgment has been given, unless the party could not act in the proceedings or was not properly represented.

31. Under Article 412 § 1 of the Code, a reopened case is to be examined within the limits determined by the grounds for the reopening. According to § 2 of this provision, after a fresh examination of the case, the court may either dismiss the request for reopening, or allow it and alter or quash the impugned judgment. If need be, it may reject the claim on formal grounds or discontinue the proceedings.

COMPLAINT

32. The applicant complained invoking Articles 6, 7 and 14 of 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

A. Scope of the case before the Court

33. 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.”

B. The Government ’ s objection on non-exhaustion of domestic remedies

34 . Article 35 § 1 of the Convention reads, in so far as relevant, as follows:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law... . “

1 . The parties ’ submissions

35. The Government submitted that the present application was inadmissible on account of the applicant ’ s failure to exhaust available domestic remedies. They relied on the fact that the applicant had failed to lodge a request for the reopening of the proc eedings available under Article 401 1 of the Code of Civil Procedure following the judgment of the Constitutional Court of 28 February 2012. They referred to a judgment of the Rzeszów Court of Appeal (case no. III AUa 338/12 ) concerning a request for reopening of proceedings in a similar case. It this case the domestic court reopened the proceedings and eventually altered the impugned rulings granting the individual concerned the right to the EWK pension from the date on which it had been originally revoked . They argued that this ruling was in line with the Supreme Court ’ s case-law implementing the Moskal judgment and requiring the domestic courts to assess the proportionality of the consequences of an interference with an individual ’ s right to a social benefit (see paragraphs 19-21 above). They further referred to another case before a domestic court in which the proceedings had been reopened and the corresponding application lodged with the Court concerning the revocation of the EWK pension had been declared inadmissible as premature (see Samsel v. Poland ( dec. ), no. 55 100/11, 27 August 2013).

36. The applicant submitted that she upheld the complaints raised in her application before the Court. She did not comment on the Government ’ s objection.

2. The Court ’ s assessment

(a) Principles deriving from the Court ’ s case-law

37. The purpose of the exhaustion rule, contained in Article 35 § 1 of the Convention, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them, before those allegations are submitted to the Court. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system . In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights ( see Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports 1996 ‑ IV; and KudÅ‚a v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI).

38. The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness ; it falls to the respondent State to establish that these various conditions are satisfied (see, among many authorities, Mifsud v. France ( dec. ) [GC], no. 57220/00 , ECHR 2002 ‑ VIII).

39. It is true that, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. However, 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 Giacometti and Others v. Italy ( dec. ), no. 34939/97 , ECHR 2001 ‑ XII).

40. The Court reiterates that according to its established case-law, a request for the reopening of proceedings does not, as a rule, constitute an effective remedy for the purposes of Articl e 35 § 1 of the Convention (see Riedl-Riedenstein and Others v. Germany ( dec. ), no. 48662/99, 22 January 2002; Babinsky v. Slovakia ( dec. ), no. 35833/97, 11 January 2000; and Uskela v. Sweden , no. 1053 7/83, Commission decision of 10 October 1985, Decisions and Reports (DR) 44, p. 98). However, there are exceptions to that rule where it can be established that under domestic law such a request can genuinely be d eemed an effective remedy (see, f or example, Kiiskinen and Kovalainen v. Finland ( dec. ), no. 26323/95, 1 June 1999; Nikula v. Finland ( dec. ), no. 31611/96, 30 November 2000; and K.S. and K.S. AG v. Switzerland , no. 19117/91, Commission decision of 12 January 1994).

41. Moreover, t he assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France , no. 33592/96 , § 47, 22 May 2001 and Brusco v. Italy ( dec. ), no. 69789/01 , ECHR 2001 ‑ IX). In particular, the Court had previously departed from this general rule in cases concerning remedies against the excessive length of the proce edings (see Brusco , cited above; Michalak v. Poland ( dec. ), no . 24549/03, § 36, 1 March 2005; Nogolica v. Croatia ( dec. ), no. 77784/01, ECHR 2002 ‑ VIII, Andr áš ik and Others v. Slovakia ( dec. ), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002 ‑ IX ) and in cases concerning a new compensatory remedy in respect of interferences with property rights ( Demopoulos and Others v. Turkey ( dec. ) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04 , ECHR 2010 ) .

(b) Application of the above principles to the present case

42. In the light of the above principles the Court has to first examine whether in the circumstances of the present case it can be established that the request for reopening of the proceedings was an available and effective remedy under the domestic law for the alleged breach of Article 1 of Protocol No. 1 to the Convention.

43. The Court notes at the outset that the present case concerns essentially the same issue as the Moskal case and the other similar cases against Poland previously examined by the Court, namely the ex officio reopening of social security proceedings which had resulted in divesting the applicant of a right to the EWK pensio n (see, for example, Moskal , cited above; and Antoni Lewandowski , cited above). However, there is also a new aspect to the present case in that the relevant decisions were issued when a new provision, paragraph 1a which had been added on 1 July 2004 to section 114 of the 1998 Law, was in force . This provision explicitly allowed for reopening of social security proceedings based on a re-assessment of previously submitted documents and circumstances .

44. The Court observes that the provision in question was subsequently declared unconstitutional by the Constitutional Court on 28 February 2012. The Constitutional Court found that it was in breach of the principle of the rule of law as set forth in Article 2 of the Constitution and that it did not strike a fair balance between the general interest and an individual ’ s right to social security guaranteed by Article 67 § 1 of the Constitution. In the grounds for its ruling, the Constitutional Court explicitly stated that the finding of unconstitutionality of section 114(1a) of the 1998 Law should be a ground for the reopening of proceedings in which final rulings had been based on this provision. In accordance with the relevant domestic law such requests should have been lodged within the period of three months from the date on which the judgment of the Constitutional Court entered into force , that is from 8 March 2012 (see paragraphs 22-27 above) .

45. Turning to the facts of the present case, the Court notes that the relevant provision was explicitly relied on by the domestic authorities in de aling with the applicant ’ s case. The final judgment in the case was given by the Rzeszów Court of Appeal on 10 February 2010 (see paragraphs 8 and 13 above). O n the date when the Constitutional Court ’ s judgment entered into force, the five years ’ time-limit to lodge a request for reopening as provided for in the domestic law had not expired in respect of the applicant (see paragraph 30 above). The Court is therefore satisfied that the remedy relied on by the Government was available to her. The applicant did not submit any arguments to the contrary.

46. As regards the effectiveness of this remedy, t he Court recalls the findings it has made concerning the effectiveness of a constitutional complaint in Poland (see Szott-MedyÅ„ska and Others v. Poland ( dec. ) , no. 47414/99, 9 October 2003; Pachla v. Poland ( dec. ), no. 8812/02, 8 November 2005; WiÄ™cek v. Poland ( dec. ), no. 19795/02, 17 January 2006; Tereba v. Poland ( dec. ), no. 30263/04, 21 November 2006 , and, most recently, H ö sl-Daum and Others v. Poland ( dec. ), no. 10613/07 , 7 October 2014 ). According to this established case-law the constitutional complaint can be recognised as an effective remedy, within the meaning of the Convention, where 1) the individual decision, which allegedly violated the Convention, had been adopted in direct application of an unconstitutional provision of national legislation; and 2) procedural regulations applicable for revision of such type of individual decisions provide for the reopening of the case or quashing the final decision upon the judgement of the Constitutional Court in which unconstitutionality had been found. The Court has acknowledged that the Polish co nstitutional complaint did not provide immediate redress, a s the successful appellant would have to go through another step ‑ to request the reopenin g of his or her individual case. However, s ince in the renewed examination of the case the authorities will have to disregard the law declared unconstitutional in the proceedings before the Constitutional Court and apply the law ‑ as interpreted in its judgment - to the particular facts of the individual case, the Court has held that the two-step remedy envisaged under Polish law is capable of providing redress ( see Szott-MedyÅ„ska and Others , cited above) .

47. Although Article 35 § 1 of the Convention does not normally require resort to extraordinary remedies, the Court underlines that the remedy in question in the present case was in fact a second step of a constitutional remedy envisaged under Polish law. Even though the Government did not plead non-exhaustion on the ground that the applicant had failed to lodge a constitutional complaint, the Court cannot but note in this context that the individual decision, which allegedly violated the Convention, had been adopted in direct application o f the unconstitutional provision (compare and contrast Antoni Lewandowki , cited above, § 69). H ad the applicant lodged a request for reopening of the proceedings, the domestic courts would have again review ed the decision of the SSB of 17 July 2009 divesting her of the right to a pension (see also Samsel , cited above, § 36). In the renewed examination of the case they should have disregarded the provision which had been declared unconstitutional by the Constitutional Court and which had been at the heart of the applicant ’ s complaint with the Court (see paragraphs 32-33 above).

48. The Court also takes note of the Supreme Court ’ s practice as regards the interpretation of section 114 (1) of the 1998 Law in accordance with the criteria set forth in the Moskal judgment , requiring the domestic courts to assess the proportionality of the interference with an individual ’ s right to the social benefit, and of the subsequent case-law of the domestic courts referred to by the Government (see paragraphs 19-21 and 35 above). That being so, the Court finds no reason to believe that the remedy in question would not afford the applicant the oppor tunity to obtain redress for her grievance or that it would have no reasonable prospect of success. Accordingly, the Court considers that the request for reopening of the judicial proceedings based on the judgment of the Constitutional Court of 28 February 2012 should be regarded as an effective remedy in respect of the applicant ’ s complaint about the rev ocation of her right to the EWK pension.

49. It remains to be established whether the applicant was obliged to exhaust the remedy in question, given that she had introduced her application with the Court on 2 April 2010, before the date when it became possible to request the reopening of the proceedings.

50. The Court reiterates that, in principle, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see Demopoulos and Others , cited above , § 87). However, as it has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Dem o poulos and Others , i bid., with further references). Among such exceptions there were situations where, following a pilot judgment on the merits in which the Court has found a systemic violation of the Convention, the respondent State makes available a remedy to redress at domestic level grievances of similarly situated persons (see Demopoulos and Others , cited above, §§ 87-88; Broniowski v. Poland (merits) [GC], no. 31443/96, §§ 191-193, ECHR 2004-V; and Łatak v. Poland ( dec. ), no. 52070/08, § 79, 12 October 2010).

51. The Court considers that the instant case presents many similarities to such cases and a number of elements militate in favour of an exception also in this case.

52. The Court notes that over a hundred applications against Poland have been filed with the Court in which the applicants alleged a breach of Article 1 of Protocol No. 1 to the Convention on account of the ex officio reopening of the social security proceedings and the quashing of the final decision granting them a right to a n EWK pension ( see Moskal , cited above, § 28; and Antoni Lewandowski , cited above, § 33) .

53. In its ruling of 15 September 2009 in the leading case concerning the EWK pensions, Moskal v. Poland , the Court found a violation of Article 1 of Protocol No. 1 to the Convention on the ground that a fair balance had not been struck by the domestic authorities between the demands of the general interest of the public and the requirements of the protection of the individual ’ s fundamental rights and that the burden placed on the applicant was excessive ( see Moskal , cited above, § 76).

54. The relevant judgment of the Constitutional Court was given following the adoption of the Moskal judgment, and it addressed essentially the same issue , namely the lack of proportionality of an interference with an individual ’ s right to a social security benefit, albeit based on the impugned provision of section 114(1a) of the 1998 Law (see paragraphs 22-25 above). The remedy which became open to the applicant in consequence of the Constitutional Court ’ s judgment was thus clearly envisaged to address, in particular , the issue identified by the Court in the Moskal judgment .

55. The Court further notes that the applicant did not submit any arguments to suggest that there had been any exceptional circumstances which had prevented her from lodging the request for reopening of proceedings within the statutory time-limit of three months from the date of entry into force of the Constitutional Court ’ s judgment (see paragraph 36 above).

56. Taking into account the fact that the Convention mechanism is subsidiary to national systems for safeguarding human rights, and in view of the above considerations, the Court finds that the applicant should have made use of the remedy available to her following the judgment of the Constitutional Court of 28 February 2012 .

57. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-e xhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 September 2015 .

Françoise Elens-Passos Guido Raimondi Registrar President