FOURTH SECTION

DECISION

Application no . 10920/12 Barbara SAJ against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 16 June 2015 as a Committee composed of:

Faris Vehabović , President, Krzysztof Wojtyczek , Yonko Grozev , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 3 February 2012 ,

Having deliberated, decides as follows:

THE FACTS

1. T he applicant, Ms Barbara Saj , is a Polish national, who was born in 1957 and lives in Mielec .

2. The Polish Government (“the Government”) were represented by their Agent, M s 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 has a child born in 1985 . Prior to her application for an EWK pension she had been employed as a seamstress since 1993 by the same employer .

1. Proceedings before the Social Security Board

(a) Granting of the “EWK” pension

5. On 12 December 1997 the applicant filed an application with the Social Security Board ( ZakÅ‚ad UbezpieczeÅ„ SpoÅ‚ecznych – “the SSB”) to b e 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, she submitted, among other documents concerning her son ’ s health, a medical certificate issued by a specialist doctor on 2 December 1997. The certificate stated that the child suffered from bronchial asthma and was in need of the parent ’ s constant care.

7. On 17 December 1997 the SSB issued a decision granting the applicant the right to an early - retirement pension in an unspecified amount, starting from 1 December 1997.

8. 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.

9 . On 6 August 2001 the applicant took up employment on a part ‑ time basis, which she continued until 30 June 2004. She started another employment on 24 August 2007, which she continued until 31 August 2011.

(b) Revocation of the “EWK” pension

10. On 18 May 2009 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”).

11. On 6 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 w as discontinued st arting from 1 August 2009. By virtue of the second decision, the Board rev oked the initial decision of 17 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 ( RozporzÄ…dzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnieÅ„ do wczeÅ›niejszej emerytury pracowników opiekujÄ…cych siÄ™ dziećmi wymagajÄ…cymi staÅ‚ej opieki – “the 1989 Ordinance”) .

2. Proceedings before the court s

12. 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. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.

13. On 13 April 2010 the Tarnobrzeg Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s appeal. The medical expert appointed by the court found that the applicant ’ s son was not, and had never been, in need of his parent ’ s constant care.

Moreover, the domestic court established that the applicant had been employed at the time when she had been granted the EWK pension until 31 January 1998 and subsequently from August 2001 until June 2004 .

14. On 30 June 2010 the Rzeszów Court of Appeal ( SÄ…d Apelacyjny ) dismissed the applicant ’ s appeal against the first ‑ instance judgment . The appellate court agreed with the first ‑ instance court ’ s findings of fact. It further considered that the conclusion of the first ‑ instance court that the applicant ’ s son had not required her permanent care was supported by the available data concerning the applicant ’ s employment. The Court of Appeal pointed out in that context that the applic ant had been employed on a full ‑ time basis at the time she had been granted the EWK pension and that she had resumed employment on a part ‑ time (one ‑ fourth) basis when she was in receipt of the pension.

15. On 23 November 2011 the Supreme Court ( Sąd Najwyższy ) refused to entertain the applicant ’ s cassatio n appeal.

3 . Proceedings concerning the applicant ’ s request for reopening of judicial proceedings

16. On 3 April 2012 the applicant requested for the proce edings terminated by the Tarnobrzeg Regional Court on 13 April 2010 and by the Rzeszów Court of Appeal on 30 June 2010 to be reopened. She relied on the judgment of the Constitutional Court of 28 February 2012 declaring unconstitutional section 114 (1a) of the of the 1998 Law (see paragraph s 24 ‑ 26 below) .

17. On 20 June 2013 the Rzeszów Court of Appeal altered the impugned judgments and the decision of SSB of 6 July 2009 and granted the applicant the right to early ‑ retirement pension from 1 August 2009 . It considered that the contested judgments and decision had been based on section 114 (1a) of the 1998 Law. It further observed that, although there were doubts whether the applicant had ever satisfied the requirements to receive the EWK pension, in altering the above decisions it took into account their negative consequences on the applicant ’ s financial situation.

18. On 29 August 2013 the SSB issued a decision implementing the judgment of the Court of Appeal. The payment of the applicant ’ s pension was resumed as from October 2013 in the amount of PLN 770 net. The applicant was also paid the pension due for the period from August 2009 until September 2013 in the overall amount of PLN 32,754 (approximately EUR 8,000).

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

19. Following the social security proceedings , the applicant was not ordered to return her early ‑ retirement benefits p aid by the SSB , despite the revoc ation of her right to the early ‑ retirement pension.

20. The Government submitted that, while receiving the EWK pension , the applicant had been employed from 6 August 2001 until 30 June 2004 and subsequently from August 2007. She had continued the latter employment until August 2011, two years after her pension had been revoked. In the same year she had started another employment which she continued in 2013. The Government did not state whether the applicant had been employed on a part ‑ time or full ‑ time basis. They, however, submitted that her gross annual income derived from these employment contracts had been PLN 1,999 (appr oximately EUR 500) in 2007, PLN 6,756 (approximately EUR 1,690) in 2008, PLN 7,656 (a pproximately EUR 1,913) in 2009, PLN 7,902 (approx imately EUR 1,975) in 2010, PLN 10,394 (approximately EUR 2,595) in 2011, PLN 18,600 (approxi mately EUR 4,650) in 2012 and PLN 15,727 (approximately EUR 3,931) until December 2013.

21. The applicant generally submitted that her financial situation following the revocation of the EWK pension was difficult. She did not submit any further information or documents.

B. Relevant domestic law and practice

1. Social security system

22. 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

23. 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 u stawy 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 reassessed 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 o n 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)

24. On 10 February 2011 the Ombudsman made an application to the Constitut ional Court, asking for section 114 (1a) of the 1998 Law to be declared unconstitutional.

25. On 28 February 2012 the Constitutional Court held that section 114 (1a) of the 19 98 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 reassessment 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. It also found that the provision in question did not strike a fair balance between the general interest and an individual ’ s right t o social security under Article 67 § 1 of the Constitution .

26. W ith regard to the consequences of this ruling, the Constitutional Court stated that the finding of unconsti tutionality 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.

COMPLAINTS

27. The applicant complained that the ex officio reopening of the social security proceedings and the revocation of her right to the EWK pension were in breach of Article 6 § 1 of the Convention.

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

28 . In the instant case the gist of the applicant ’ s complaints is that the decision to divest her of her early ‑ re tirement 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.”

2. The Government ’ s preliminary objection

29 . The Government argued that the present application should be rejected as being an abuse of the right of petition within the meaning of Article 35 § 3 of the Convention, regard being had to the fact that the applicant had informed the Court by her letter of 22 January 2013 that there had been no new developments in her case. As at that time the proceedings concerning her request for reopening of the judicial proceedings were pending before the Rzeszów Court of Appeal ( see paragraph 16 above) , the Government considered that the applicant had failed to disclose important information to the Court.

30. The applicant did not comment on the Government ’ s objection.

31. The Court does not find it necessary to determine this question, because the application is in any event inadmissible for reasons stated below.

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

1. The parties ’ submissions

32 . The Government maintained that the application was manifestly ill ‑ founded. They also submitted that the applicant had lost victim status. They referred to the judgment of the Rzeszów Court of Appeal of 20 June 2013 granting the applicant the right to early ‑ retirement pension from 1 August 2009 , that is , from the date when her pension had been originally revoked . They further referred to the decision of the SSB of 29 August 2013 on the basis of which the applicant had been paid the pension due for the whole period from August 2009 until September 2013 in the overall net amount of PLN 32,754. They argued that, as the applicant ’ s right to the EWK pension had been restored and she had been redressed for the alleged breach of her right to the peaceful enjoyment of her possessions, the application was manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention.

33. The applicant submitted that she had borne an excessive burden in that the decision of 6 July 2009 had deprived her of her main source of income with immediate effect. She further argued that the revocation of her early ‑ retirement pension caused her great suffering and distress for which she had not been compensated by the domestic authorities .

2. The Court ’ s assessment

34 . The relevant general princ iples are set out in paragraphs 49 ‑ 52 of the Moskal judgment. The Court would nevertheless reiterate that any interference by a public authority with the peaceful enjoyment of possessions should be lawful, must be in t he 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).

It would further reiterate 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 ).

35 . 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).

36 . However, in assessing the proportionality of this interference, the Court considers that the present case differs substantially from the 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, among many other examples, Moskal and Antoni Lewandowski , cited above).

37 . In contrast, 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 ( see Rzepa v. Poland ( dec. ), no. 30361/04, 9 April 2013, § 34 ).

It is true that the Court does not have information whether the applicant was employed on a full ‑ time basis at that time (see paragraph s 9 and 20 above). However, the applicant at no stage contested the Government ’ s submission that she was in employment then (see paragraphs 21 and 33 above), nor did she produce any information or documents in this respect . The Court therefore considers that i t has been clearly established that the applicant had another source of income at the time when her pension was revoked (compare and contrast Antoni Lewandowski , cited above, § 82) . Moreover, it cannot be overlooked that the applicant ’ s income from that employment was comparable to the income she derived from her EWK pension. The Court further notes that, after the revocation of her pension, the applicant continued to be employed by the same employer for two more years with a gradually rising salary . She was also apparently in employment in 2012 and 2013 (see paragraph 20 above).

38. The Court observes that on 20 June 2013, following the applicant ’ s request for reopening of the judicial proceedings terminated in 2010, the domestic court altered the impugned judgments and decision and granted the applicant the right to pension from the date when it was ori ginally revoked (see paragraphs 16 and 17 above). Consequently, in August 2013 the applicant was paid the whole amount of pension due for the period from 1 August 2009 (see paragraph 18 above). Therefore, in contrast to the previously examined similar cases (see, for example, Antoni Lewandowski , cited above ), the domestic proceedings eventually had a favourable outcome in the applicant ’ s case .

39 . 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 Antoni 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, as already noted abo ve, throughout this whole period the applicant was employed.

40 . In view of the foregoing, it cannot be said that the authorities ’ decisions placed on the applicant an excessive burden incompatible with Article 1 of Protocol No. 1 to the Convention (see Rzepa , cited above, §§ 31 ‑ 37). The applicant ’ s case is therefore clearly distinguishable from the facts of the leading case concerning EWK pensions, Moskal v. Poland .

41. In the light of the foregoing, the Court finds it unnecessary to deal with the Government ’ s argument that the applicant has lost her status of a victim of a breach of a Convention right.

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

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

43. The applicant al so alleged violation of Article 6 of the Convention on the same grounds ( see paragraph 27 above ).

44 . However, the Court considers that any issues that may be raised by the applicant under this provision have already been adequately ad dressed above (see paragraphs 34–42 above).

45 . In any event, in all the previous cases examined to date, the Court considered that the complaints under Article 6 of the Convention did not require separate examination (see, among many other examples, Moskal , §§ 77 ‑ 83 and Antoni Lewandowski , §§ 86 ‑ 88, cited above; see also paragraph 28 above ).

46 . It follows that the remainder of the application must lik ewise be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 July 2015 .

Fatoş Aracı Faris Vehabović Deputy Registrar President