FOURTH SECTION

DECISION

Application no . 55100/11 Marta SAMSEL against Poland

The European Court of Human Rights (Fourth Section), sitting on 27 August 2013 as a Chamber composed of:

Ineta Ziemele , President, Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Krzysztof Wojtyczek , Faris Vehabović , judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 18 August 2011,

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 Marta Samsel , is a Polish national, who was born in 1958 and lives in Gdynia.

2 . The Polish Government (“the Government”) were represented by their Agents, 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 is married and has one child. Prior to her application for a pension she had been employed by the same employer since 1994.

1. Proceedings concerning the grant and revocation of the EWK pension

5 . On 22 July 1997 the applicant filed an application with the Rzeszów Social Security Board ( ZakÅ‚ad UbezpieczeÅ„ SpoÅ‚ecznych – “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 1984) suffered from bronchial asthma and was in need of the parent ’ s constant care.

7 . On 31 July 1997 the SSB issued a decision granting the applicant the right to an early ‑ retirement pension in the net amount of 491 Polish zlotys (PLN) per month from 1 July 1997.

8 . The applicant resigned from her full-time employment on 31 August 1997. Consequently, the payment of her pension commenced.

9 . On 8 September 1997 the applicant was re ‑ employed by her previous employer on a half-time basis, and remained employed continuously until 31 December 2001.

10 . On 16 April 2007 the SSB reviewed the applicant ’ s pension application under section 114 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”) (see also paragraph 13 below).

11 . On 29 May 2007 the SSB simultaneously issued two decisions. By virtue of the first decision, the payment of the applicant ’ s pension was discontinued starting from 1 June 2007. By virtue of the second decision, the Board reopened the proceedings, revoked the initial decision granting the 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 these 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 protection of vested rights.

13 . On 5 December 2007 the GdaÅ„sk Regional Court ( SÄ…d OkrÄ™gowy ) dismissed the applicant ’ s appeal. The Regional Court established that the applicant had continued her full-time employment until 31 August 1997 and worked part-time from 8 September 1997 until 31 December 2001. 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 at the date of granting the EWK pension, the applicant ’ s daughter had attended a primary school and, subsequently, a high school. She had studied without any special arrangements or assistance of a third person. She had finished both schools without any delays. Later, the applicant ’ s daughter had taken up full-time studies away from her home town. When the case was heard by the Regional Court she was in her final year.

The Regional Court also found that the proceedings had been reopened by the SSB in accordance with section 114(1a) of the 1998 Law.

14 . The applicant appealed against the first-instance judgment.

15 . On 8 July 2010 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal, fully upholding the first-instance court ’ s findings of fact and law. The Court of Appeal confirmed that the ex officio reopening of the proceedings by the SSB in the applicant ’ s case was based on a different assessment of the evidence which had already been known to the authority. However, it found that section 114(1a) of the 1998 Law which was in effect from 1 July 2004, in contrast to section 114(1), explicitly allowed the SSB to reopen the proceedings on this ground.

16 . On 3 March 2011 the Supreme Court ( Sąd Najwyższy ) refused to entertain the applicant ’ s cassation appeal.

2. Reopening of the proceedings

17 . On an unspecified date in 2012 the applicant requested for the proceedings terminated by the Gdańsk Regional Court on 5 December 2007 and by the Gdańsk Court of Appeal on 8 July 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 paragraphs 23-25 below).

18 . On 11 July 2012 the Gdańsk Court of Appeal allowed the applicant ’ s request and reopened the proceedings. On the same date the Court of Appeal gave judgment by virtue of which it quashed the impugned judgments and remitted the case for a fresh examination to the Gdańsk Regional Court.

19 . The Gdańsk Regional Court listed the first hearing for 26 February 2013. In the light of the material in the Court ’ s possession, the proceedings are pending.

B. Relevant domestic law and practice

1. Social security system

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 ) .

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

“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. Constitutional Court ’ s judgment 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.

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.

Lastly, with regard to the consequences of this 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.

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.

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

24 . 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. Judgmen ts 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 bi nding 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 re opening proceedings, or for quashing the impugned decision or ruling in a manner and on principles specified in provisions applicable to the given proceedings.”

25 . In accordance with Article 399 read in conjunction with Article 401 1 of the Code of Civil Procedure 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 . 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.

COMPLAINTS

THE LAW

A. Scope of the case before the Court

28 . 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

29 . 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

30 . The Government submitted that the present application was premature. They relied on the fact that, following the judgment of the Constitutional Court finding that section 114(1a) of the 1998 Law was unconstitutional, the proceedings in the applicant ’ s case had been reopened upon her own request. On 11 July 2012 the Gdańsk Court of Appeal quashed its previous judgment of 8 July 2010 and the judgment of the Gdańsk Regional Court of 5 December 2007 and remitted the case for a fresh examination to the first instance court. The proceedings in the applicant ’ s case were again pending before the domestic courts.

31 . The applicant disagreed and maintained that her application was not premature. She submitted that she had lodged her application with the Court on 18 August 2011, after having exhausted all the available domestic remedies. Although the proceedings in her case indeed had been reopened and the case had been remitted for a fresh examination to the Gdańsk Regional Court, she considered that the subject matter of these proceedings differed substantially from the subject matter of her complaint submitted to the Court. She argued that the reopening was based strictly on the judgment of the Constitutional Court of 28 February 2012 on the unconstitutionality of section 114(1a) of the 1998 Law, while her complaint before the Court concerned the unjustified deprivation of property by virtue of the decision of 27 May 2007, divesting her of her pension. In particular, she submitted that the reopening of the domestic proceedings concerning her right to the EWK pension could not result in an award of compensation for the alleged violation of her rights under Article 1 of Protocol No. 1 to the Convention.

2. The Court ’ s assessment

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

32 . It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Demopoulos and Others v. Turkey ( dec. ) [GC], no. 46113/99, ECHR 2010-..., § 69; Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports 1996 ‑ IV ; and Łatak v. Poland ( dec. ), no. 52070/08, 12 October 2010, § 75).

33 . The rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness ( ibid . and Antoni Lewandowski v. Poland , cited above, § 61) .

34 . Furthermore, a request for reopening a case cannot itself be usually regarded as an effective remedy within the meaning of Article 35 § 1 of the Convention (see Riedl-Riedenstein and Others v. Germany ( dec. ), no. 48662/99, 22 January 2002), unless it is successful and results in the actual reopening of the case (see Korkmaz v. Turkey ( dec. ), no. 42576/98, 17 January 2006, with further references).

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

35 . Following the judgment of the Constitutional Court of 28 February 2012, the proceedings concerning the applicant ’ s right to her early ‑ retirement pension were reopened upon her own request. On 11 July 2012 the GdaÅ„sk Court of Appeal quashed both first- and second-instance judgments previously given in her case and remitted the case for a fresh examination to the first instance court (see paragraphs 17 and 18 above). The proceedings are now pending before the GdaÅ„sk Regional Court (see paragraph 19 above).

36 . It is true that the applicant asserted that the subject matter of these proceedings differed substantially from the subject matter of her application to the Court (see paragraph 31 above). The Court does not accept this argument. The applicant complained to the Court about the reopening of the social security proceedings, which had resulted in the revocation of her right to the EWK pension (see paragraph 27 above). However, as her request for the reopening of judicial proceedings was successful, the determination of her right to a pension generated by the decision of the SSB of 31 July 1997 (see paragraph 7 above) has begun anew. Thus, the object of the pending proceedings, likewise the object of the application to the Court, is the applicant ’ s right to the EWK pension.

The decision of the SSB of 29 May 2007 divesting the applicant of this right is again under judicial review (see paragraph 26 above and Moskal , cited above, § 31). Consequently, the central issue regarding the applicant ’ s Convention claim is still not determined and it is open to the domestic authorities to afford her redress for the alleged breach of the Convention. As regards the applicant ’ s arguments concerning the alleged inadequacy of redress available as a result of the reopening (see paragraph 31 above), the Court would reiterate that it must leave the choice of implementation of redress for breaches of property rights to Contracting States, who are in the best position to assess the practicalities, priorities and conflicting interests on a domestic level (see, Demopoulos , cited above, § 118). Accordingly, pending the determination of the asserted property right itself, the issue of whether or not the applicant can be awarded compensation in those proceedings cannot be regarded as relevant in the context of exhaustion of domestic remedies.

37 . In these circumstances and in the light of all the material in its possession, the Court finds that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies .

For these reasons, the Court by a majority

Declares the application inadmissible.

Fatoş Aracı Ineta Ziemele Deputy Registrar President