FOURTH SECTION

DECISION

Application no . 37529/12 Ma Å‚ gorzata WARZOCHA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 9 June 2015 as a Committee composed of:

Nona Tsotsoria, President, Paul Mahoney, Faris Vehabović , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 11 June 2012 ,

Having regard to the declaration submitted by the respondent Government on 30 April 2014 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Ms Ma ł gorzata Warzocha , is a Polish national, who was born in 1961 and lives in G ł ogów Ma ł opolski .

The Polish Government (“the Government”) wer e represented by their Agent, M s J. Chrzanowska of the Ministry of Foreign Affairs .

The application had been communicated to the Government .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1 . Proc eedings concerning grant and revocation of the applicant ’ s pension

On 5 December 1997 the SSB issued a decision granting the applicant the right to an early-retirement pension fo r persons raising children who required constant care, in respect of her son (born in 1988) in the net amount of 363 Polish zlotys (PLN), starting from 1 November 1997.

On 12 October 2009 the SSB 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 November 2009. By virtue of the second decision, the Board revoked the initial decision of 5 December 1997 and eventually refused to award the applicant the right to an early ‑ retirement pension .

On 25 May 2010 the Rzeszów Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s appeal against the above-mentioned decision.

On 8 October 2010 the Rzeszów Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant ’ s appeal against the first-instance judgment .

On 23 November 2011 the Supreme Court ( Sąd Najwyższy ) refu sed to entertain the cassation appeal lodged by the applicant .

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

On 14 May 2012 the applicant requested for the proceedings terminated by t he Rzeszów Regional Court on 25 May 2010 and by the Rzeszów Court of Appeal on 8 October 2010 to be reopened. She relied on the judgment of the Constitutional Court of 28 February 2012 declaring unconstitutional 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”).

On 4 July 2012 the Rzeszów Court of Appeal dismissed the applicant ’ s request. It considered that despite the fact that the courts examining the applicant ’ s case had relied on both paragraph 1 and 1a of this provision , it had been in fact paragraph 1 of section 114 of the 1998 Law which had constituted the legal basis for the impugned decision and judgments. It further noted that this finding was in line with its settled case-law in similar cases.

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

Following the social security proceedings, the applicant was not ordered to return her early-retirement benefits paid by the SSB, despite the revocation of her right to the early-retirement pension.

When receiving the EWK pension , the applicant was employed by her previous employer on a part-time (three-fourth) basis until 30 November 2000. At the time of the revocation of the EWK pension she was not in employment.

The applicant submitted that after the revocation of the pension she had not resumed gainful employment. Neither had she received any benefits or allowances.

The parties did not submit any information when the applicant would qualify for a regular retirement pension .

B. Relevant domestic law and practice

1. Social security system

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

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 th e 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 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)

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.

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.

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.

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 to the Convention and under Articles 6 and 8 of the Convention about the reopening of the social security proceedings which resulted in the revocation of her right to the EWK pension.

The applicant further complained , invoking Article 6 of the Convention, about the alleged unfairness of proceed ings in her case.

Lastly, the applicant complained under Article 14 of the Convention, in conjunction with Article 1 of Protocol No. 1, of discrimination based on her place of residence. She also invoked Article 14 of the Convention alleging that she had been discriminated against as the Supreme Court refused to entertain her cassation appeal whereas it had examined cassation appeals in other similar cases.

THE LAW

A. Revocation of the applicant ’ s right to the EWK pension

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 complaints fall to be examined under Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, provides 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.”

After the failure of attempts to reach a friendly settlement, b y letter dated 28 April 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“(...) the Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the violation of Article 1 of Protocol No. 1 to the Convention stemming from the sudden revocation of the applicant ’ s EWK pension which placed an excessive burden on the applicant incompatible with that provision.

Consequently, the Government are prepared to pay to the applicant the sum of EUR 6,000 (six thousand euro s ) which they consider to be reasonable in the light of the Court ’ s case law (see Ptaszek v. Poland , no. 41188/11, decision of 10 September 2013, Marek v. Poland , application no. 54148/09, judgment of 28 January 2014; Wojtusiak v. Poland , application no. 4575/05, decision of 10 September 2013) . The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points. (...)”

By letter of 10 June 2014 the applicant indicated that she was not satisfied with the terms of the unilateral declaration . She expressed the view that the sum mentioned in the Government ’ s de claration was unacceptably low in the light of the extent of damage she had suffered. She considered that the circumstances of her case were substantially different from the facts of the cases relied on by the Government.

The Court re iterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also re iterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Cour t has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC ], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ), no. 28953/03 , 18 September 2007 ).

The Court has established in a number of cases brought against Poland its practice concerning complaints under Article 1 of Protocol No. 1 to the Convention about the reopening of the social security proceedings which had resulted in the revocation of the applicant ’ s right to the so-called “EWK” pension (see, among other examples, Moskal v. Poland , cited above ; Antoni Lewandowski v. Poland , cited above ).

As regards the issues raised by the applicant under other provisions of the Convention, in all the previous similar cases examined to date the Court has held that the complaints under Articles 6 and 8 of the Convention did not require a separate examination (see, for example, Moskal , cited above, §§ 83 and 94; Antoni Lewandowski , cited above, § 88). It sees no reason to depart from this conclusion in the present case.

Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

B. Remaining complaints

The applicant further complained under Article 6 of the Convention that the proceedings in her case had been unfair and that the domestic courts had wrongly assessed the evidence. She also relied on Article 14 of the Convention submitting that the practice of reopening proceedings concerning EWK pensions had been limited to the Podkarpacki region and that the Supreme Court had refused to entertain her cassation appeal.

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from these complaints (see also Moskal , cited above, §§ 86-88 and 100).

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court , unanimously ,

Takes note of the terms of the respondent Government ’ s declaration under Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike part of the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 2 July 2015 .

Fatoş Aracı Nona Tsotsoria Deputy Registrar President