FOURTH SECTION

DECISION

Application no . 30361/04 Stanisława RZEPA against Poland

The European Court of Human Righ ts (Fourth Section), sitting on 9 April 2013 as a Chamber composed of:

Ineta Ziemele , President, David Thór Björgvinsson , Päivi Hirvelä , George Nicolaou , Zdravka Kalaydjieva , Vincent A. De Gaetano , Krzysztof Wojtyczek , judges and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 9 August 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 Stanisława Rzepa , is a Polish national, who was born in 1956 and lives in Będziemyśl .

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 is a widow and has one child. Prior to her application for an EWK pension (see paragraph 8 below) she had been employed since 1983 by the same employer.

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

5. On 19 June 2001 the applicant filed an application with the Rzeszów Social Security Board ( ZakÅ‚ad UbezpieczeÅ„ SpoÅ‚ecznych ) 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 1985) suffered from a congenital malformation of both arms (bilateral radioulnar synostosis , zrost promieniowo-lokciowy ) and was in need of the parent ’ s constant care.

7. On 25 June 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an early ‑ retirement pension in the net amount of around 700 Polish zlotys (PLN) per month. In addition to the EWK pension the applicant received a family allowance and nursing benefit which, together wi th the pension, amounted to PLN 850 net per month.

8. The Social Security Board 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 30 August 2001. The payment of the pension started on 1 August 2001.

9. On 14 September 2001 the applicant was re ‑ employed by her previous employer, a municipal transport company ( PKS Sedziszow Malopolski ), and remained employed continuously until 13 September 2003.

10. On 20 May 2002 the Rzeszów Social Security Board requested the Social Security Board ’ s doctor ( Główny Lekarz Orzecznik ) to specify whether the applicant ’ s daughter required the permanent care of a parent. On an unspecified date 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 30 July 2002 the Rzeszów Social Security Board 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 August 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 these decisions. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant ’ s 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 18 December 2002 the Rzeszow Regional Court ( Sąd Okręgowy ) dismissed the appeal. The Regional Court concluded on the basis of the evidence, including expert medical evidence, that the applicant ’ s child suffered from a mild malformation of her arms but did not require her mother ’ s permanent care since her state of health did not significantly impair her body functions. The domestic 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 further appealed against the first-instance judgment. In particular, she claimed that she had been informed by the SSB that she could continue working while in receipt of the EWK pension.

15. On 30 October 2003 the Rzeszów Court of Appeal ( SÄ…d Apelacyjny ) dismissed the appeal. The court considered that only a total impairment of the child ’ s arms could justify the need for her parent ’ s constant care. In the present case the malfunction did not significantly impair her body functions. The child had been going to school by herself and required only minor everyday help. Moreover, the fact that the a pplicant has been employed full ‑ time while receiving the EWK pension was an important aspect of the case.

16. On 28 April 2004 the Supreme Court ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant.

2. The applicant ’ s financial situation following the revocation of the EWK pension

17. 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.

18. The applicant submitted, in general, that after the revocation of the EWK pension her financial situation had been difficult.

19. The Government submitted that the applicant had been employed continuously while receiving the EWK pension and at the time the pension was revoked. From November 2003 and December 2004 she received an unemployment allowance. In addition, in 2005 the applicant and her daughter were granted a family pension following the death of the applicant ’ s husband. The pension amounted to PLN 300 per person per month. The applicant ’ s daughter started working in 2007 and remains employed. The applicant also owns a small farm.

B. Relevant domestic law and practice

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) .

COMPLAINTS

21. The applicant complained under Articles 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 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

22. 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 her possessions. No one shall be deprived of her 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

23. The Court notes that the Government raised several objections to the admissibility of the case. They submitted that the application was incompatible ratione materia e and ratione personae with the Convention, constituted an abuse of the right of individual application, and that the applicant had failed to exhaust domestic remedies, comply with the six ‑ month rule and, finally, had suffered no significant disadvantage.

The applicant disagreed with the Government.

24. As regards non-compliance with the six-month rule, the Court has already considered in other EWK cases that the applicants should not be penalised for having tried to file a cassation appeal with the Supreme Court in order to avoid any risk of having their cas e rejected by the Court for non ‑ exhaustion of domestic remedies (see, for example, FrÄ…czek-PotÄ™ga v. Poland , no. 39430/04 , § 55, 4 December 2012). Accordingly, the final decision in the case under consideration was given by the Supreme Court on 28 April 2004 whereas the applicant lodged her application with the Court on 9 August 2004. That being so, the Court concludes that the applicant complied with the six-month term laid down in Article 35 § 1 and the Government ’ s objection should therefore be dismissed.

25. The Court further notes that it has already examined identical objections regarding abuse of the right of individual application, non ‑ exhaustion as regards the applicant ’ s failure to lodge a constitutional complaint, and no significant disadvantage and dismissed them, in the follow ‑ up cases to Moskal (see, for instance, Lewandowski , cited above, §§ 45-72 and Lew v. Poland , no. 34386/04 , §§ 35 ‑ 62, 4 December 2012 ). The Court sees no reason to depart from its previous findings.

26. Moreover, the Court finds that it is not called upon to deal with the remaining admissibility issues as the application is in any event inadmissible for the reasons stated below.

B. Article 1 of Protocol No. 1 to the Convention

1. The parties ’ submissions

27. 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 30 July 2002 had deprived her of her main source of income with immediate effect.

28. The Government contested that argument and considered that the application was manifestly ill ‑ founded. The Government submitted that the interference with the applicant ’ s property rights had been lawful and justified. In particular, divesting the appl icant 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 requi red to reimburse the sum of PLN 11,700 already paid to her.

29. Moreover, the Government underlined that the applicant had stopped working for 14 days only and continued in full-time employment while in receipt of the EWK pension. She continued working for one year after the revocation of the pension and the reason for terminating her employment in September 2003 was unknown. Therefore the revocation of the pension did not cause any detriment to the applicant. Moreover, the real intention of the applicant was to supplement her salary by means of the pension and not to stay at home in order to take care of her daughter.

2. The Court ’ s assessment

30. The relevant general principles are set out in the Moskal judgment, cited above at paragraphs 49 ‑ 52. 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).

The Court has held 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 ).

32. 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).

33. However, in assessing the proportionality of this interference, the Court considers that the present case differs substantially from the earlier 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, in addition to Moskal and Lewandowski , cited above, Czaja v. Poland , no. 5744/05 , 2 October 2012; Kapel v. Poland , no. 16519/05 , 2 October 2012; Kluska v. Poland , no. 33384/04 , 2 October 2012; Kowal v. Poland , no. 21913/05 , 2 October 2012; Kura v. Poland , no. 17318/04 , 2 October 2012; Lasota v. Poland , no. 6762/04 , 2 October 2012; PÅ‚aczkowska v. Poland , no. 15435/04 , 2 October 2012; Rusin v. Poland , no. 25360/04 , 2 October 2012; Helena Trznadel v. Poland , no. 5970/05 , 2 October 2012; Migalska v. Poland , no. 10368/05 , 4 December 2012 ; Potok v. Poland , no. 18683/04 , 4 December 2012; St Ä™pieÅ„ v. Poland , no. 39225/05 , 4 December 2012; Sasor v. Poland , no. 6112/05 , 4 December 2012; ÅšwiÄ…tek v. Poland , no. 8578/04 , 4 December 2012; Misielak v. Poland , no. 35538/04 , 4 December 2012; FrÄ…czek ‑ PotÄ™ga v. Poland , no. 39430/04 , 4 December 2012; Lew, cited above; Krzyżek v. Poland , no. 11815/05 , 4 December 2012; StanisÅ‚awa Szewc v. Poland , no. 31492/05 , 4 December 2012; Franciszek DÄ…browski v. Poland , no. 31803/04 , 4 December 2012) .

34. In particular, 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 (compare and contrast Lewandowski , cited above, § 82). Moreover, the applicant did not permanently resign from her job after her right to the EWK pension had been confirmed by the authorities, as she resumed gainful employment after a mere 14 days (compare and contrast Lewandowski , cited above, § 81). Although the applicant had been in receipt of both the EWK pension and a salary for a period of one year, the State did not require her to return the amount of the pension which had been unduly paid (see paragraph 28 above). She remained employed for one more year after the revocation of the pension. The fact that she did not keep this job after September 2003 had no link whatsoever with the authorities ’ decision of 30 July 2002 (see paragraphs 9 and 29 above).

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 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, 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 in the circumstances of the instant case placed on the applicant an excessive burden incompatible with Article 1 of Protocol No. 1 to the Convention. The applicant ’ s case is therefore clearly distinguishable from the facts of the leading case concerning EWK pensions, Moskal v. Poland .

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

38. The applicant also alleged violations of several other provisions of the Convention. In the applicant ’ s view the decision to divest her of her pension resulted in a violation of the Articles 6, 8, 13 and 14 of the Convention.

39. However, the Court considers that the issues raised by the applicant under Articles 6, 8, 13 and 14 of the Convention have already been adequately addressed above under Article 1 of Protocol No. 1 to the Convention (see paragraphs 30-37 above).

40. Moreover, in all twenty-three judgments examined to date, the Court considered that the complaints under those Articles either did not require separate examination or should be dismissed as manifestly ill-founded (see, among many other examples, Moskal , §§ 77 ‑ 99 , and Lewandowski , §§ 86 ‑ 88, cited above).

41. It follows that t he 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 Aracı Ineta Ziemele Deputy Registrar President