FOURTH SECTION

DECISION

Application no . 28589/05 Wiesław KUSINA 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. D e Gaetano , Krzysztof Wojtyczek , judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 28 July 2005,

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, Mr Wiesław Kusina , is a Polish national, who was born in 1955 and lives in Gawłuszowice .

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 married and has three children. Prior to his application for an EWK pension he had been employed until 31 October 2001.

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

5. On 1 October 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 his application for a pension, the applicant submitted, among other documents concerning his son ’ s health, a medical certificate issued by Dr Z.L, a urologist, which had been issued on 21 September 2001. The certificate also bore a stamp of the urology centre in Przemyśl ( Poradnia urologiczna Przychodni Specjalistycznej 114 Szpitala Wojskowego w Przemyślu ) (“the Centre”) and stated that the child (born in 1994) suffered from neurogenic bladder disorder ( dysfunkcja neurogenna pęcherza moczowego ) and was in need of the parent ’ s constant care.

7. On 12 October 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 856 Polish zlotys (PLN) 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. The applicant resigned from his job where he had been working since 1974. On 1 November 2001, the payment of the pension was resumed.

9. On 22 August 2002 the Social Security Board asked the Centre to provide medical documentation concerning the applicant ’ s son. In reply, the Centre informed it that the child had never been registered there as a patient. However, the relevant medical documentation was provided by two private medical establishments.

On an unknown date the Rzeszów Social Security Board requested the Social Security Board ’ s doctor ( Główny Lekarz Orzecznik ) to specify whether the applicant ’ s son required the permanent care of a parent.

On 20 September 2002 the doctor stated, on the basis of the medical records provided to the SSB, that the child could not be considered as ever having required such care.

10. On 24 September 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. 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”) .

11. The applicant appealed against these decisions. He submitted that he should receive the benefit because his 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 his retirement pension was contrary to the principle of vested rights.

12. On 14 September 2004 the Tarnobrzeg Regional Court ( Sąd Okręgowy ) dismissed the appeal. During the proceedings, the applicant ’ s son was examined by specialist urologists on three occasions. The experts found that he suffered from a minor phimosis and nocturnal enuresis. In their view, the medical documentation did not contain any evidence that the child had ever suffered from, or had been treated for, the diseases as diagnosed by Z.L. They stated that those particular disorders could not be diagnosed as such without carrying out a series of prior comprehensive examinations. The child ’ s medical records did not mention any of such examinations.

The Regional Court held that the applicant ’ s child did not require his father ’ s permanent care since his state of health did not significantly impair his body functions. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he did not satisfy the requirement of necessary permanent care.

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

14. On 15 December 2004 the Rzeszów Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal.

15. On 18 March 2005 the Supreme Court ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant.

2. Criminal proceedings against Dr Z.L.

17. The applicant was questioned as a witness in the proceedings.

18. On 12 January 2004, the doctor pleaded guilty to the charges.

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

20. Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to the early-retirement pension.

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

22. The Government submitted that the applicant owned a farm (4.14 hectares) which was a source of income for him and his family. In addition, the applicant ’ s wife had been employed since 2007.

B. Relevant domestic law and practice

23. 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) .

COMPLAINT S

24. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the reopening of the social security proceedings which had resulted in the revocation of his right to the EWK pension.

THE LAW

A. The parties ’ submissions

25. The applicant submitted that divesting him of his right to an early ‑ retirement pension had amounted to an unjustified deprivation of property. The applicant claimed that he had borne an excessive burden in that the decision of 24 September 2002 had deprived him of his main source of income with immediate effect.

26. The Government contested that argument. They raised several preliminary objections to the admissibility of the case (see paragraph 27 below) 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 applicant of his 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 retroactive effect, the applicant had not been required to reimburse the sum of PLN 11,128 already paid to him.

B. The Court ’ s assessment

1. Scope of the case before the Court

27. In the instant case the gist of the applicant ’ s complaints is that the decision to divest him of his right to an 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

28. The Court notes that the Government raised several objections to the admissibility of the case. They submitted that the application constituted an abuse of the right of individual application, and that the applicant had failed to exhaust domestic remedies and to comply with the six-month rule.

The applicant disagreed with the Government.

29. As regards non-compliance with the six-month rule, the Court has already held 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 case rejected by the Court for non-exhaustion of domestic remedies (see, for example, Frączek-Potęga 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 18 March 2005, whereas the applicant lodged his application with the Court on 28 July 2005. 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.

30. The Court further notes that it has already examined identical objections regarding abuse of the right of individual application and non ‑ exhaustion as regards the applicant ’ s failure to lodge a constitutional complaint 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.

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

31. 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).

32. Turning to the facts of the case the Court notes that on 12 October 2001 the applicant was granted an EWK pension for the purpose of providing full-time care to his son. He resigned from his job and started to receive his pension on 1 November 2001. The pension was revoked nearly one year later, on 24 September 2002.

33. The Court finds, as it did in previous cases, that the decision of the SSB depriving the applicant of the right to receive the EWK pension amounted to an interference with his 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, in addition to Moskal , Lewandowski , Lew and Frączek-Potęga , 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; Płaczkowska 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; Stępień v. Poland , no. 39225/05 , 4 December 2012; Sasor v. Poland , no. 6112/05 , 4 December 2012; Świątek v. Poland , no. 8578/04 , 4 December 2012; Misielak v. Poland , no. 35538/04 , 4 December 2012; Krzyżek v. Poland , no. 11815/05 , 4 December 2012; Stanisława Szewc v. Poland , no. 31492/05 , 4 December 2012; Franciszek Dąbrowski v. Poland , no. 31803/04 , 4 December 2012) .

34. Accordingly, it remains for the Court to assess the proportionality of the impugned interference.

In the above cited cases the Court, examining whether the decision to rectify the mistake by revoking the EWK pension struck a fair balance between the public interest at stake and the property rights of an individual, considered that the circumstances of each applicant ’ s case were decisive in this connection. In particular, it took into account the fact that the applicants had applied in good faith for 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 prospects of finding a new job quickly.

Furthermore, in those cases the Court observed that, as a general principle, public authorities should not be prevented from correcting their mistakes. To hold otherwise would be contrary to the doctrine of unjust enrichment. It would also be unfair to other individuals contributing to the social security fund, in particular those denied a benefit because they failed to meet the statutory requirements. Lastly, it would amount to sanctioning an inappropriate allocation of scarce public resources, which in itself would be contrary to the public interest (ibid.).

36. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Ineta Ziemele Deputy Registrar President