FOURTH SECTION

DECISION

Application no . 24728/05 Wanda KOZŁOWSKA-FIGURA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 25 March 2014 as a Committee composed of:

Nona Tsotsoria, President, Paul Mahoney, Krzysztof Wojtyczek, judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 13 June 2005 ,

Having regard to the comments 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 Wanda Kozłowska-Figura , is a Polish national, who was born in 1955 and lives in Radom .

2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wo łą siewicz, 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 was born in 1955 and lives in Radom.

5 . The applicant is married and has three children. Prior to her application for an early-retirement pension she had been employed and paid social security contributions to the State.

Proceedings concerning the grant and revocation of the EWK pension

6 . The applicant submits that o n 4 October 1995 she 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. According to the Government, the application was filed on 27 December 1995.

7 . Along with her application for a pension, the applicant submitted, among other documents concerning her daughter ’ s health condition, a medical certificate issued by a specialist medical centre . The certificate stated that the child (K, born in 1986) suffered from asthma and that she was in need of her parent ’ s constant care.

8 . On 20 January 1996 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 374 Polish zlotys (PLN). The starting date for payment of the pension was set for 4 November 1995.

9 . In January 2003 the Rzeszów Social Security Board asked the Main Social Security Board ’ s doctor ( Główny Lekarz Orzecznik ) to inform it whether the applicant ’ s daughter required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.

10 . On 5 March 2003 the Rzeszów Social Security Board suspended the payment of the applicant ’ s early-retirement pension under the scheme provided for by the 1989 Ordinance with effect from 1 April 2003 .

11 . The applicant appealed against the 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 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.

12 . On 8 August 2003 the Radom Regional Court ( SÄ…d OkrÄ™gowy ) revoked the SSB ’ s decision and granted the applicant the right to an early ‑ retirement pension under the scheme provided for by the 1989 Ordinance. The court considered that the SSB should not have reopened the proceedings ex officio. The SSB appealed.

13 . On 20 April 2004 the Lublin Court of Appeal ( Sąd Apelacyjny ) amended the first instance judgment and dismissed the applicant ’ s appeal. The Court of Appeal concluded on the basis of the evidence that since 1997 the applicant ’ s child did not require her mother ’ s permanent care as her health condition no longer significantly impair ed her bodily 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 Ombudsman filed a cassation appeal with the Supreme Court i n the applicant ’ s interest .

15 . On 25 November 2004 the Supreme Court ( Sąd Najwyższy ) dismissed the cassation appeal. The decision wa s served on the applicant on 23 December 2004.

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

16 . 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 an early-retirement pension.

17 . The applicant submitted that after the revocation of the EWK pension her financial situation had been difficult. She confirmed that during the time she had been receiving the EWK pension, she had worked in the SSB, however she had special, early morning hours (5.30 a.m . to 1.30 p.m . ). She stressed that the amount of the EWK pension she had been granted was very modest and that she had taken up part-time employment in order to provide for her family. Moreover, this part-time employment also generated only a very small income. The applicant submitted copies of some of her employment contracts from the relevant period. Between January and August 1999 she was employed half-time (4 hours a day) with a monthly salary of initi ally PLN 250 and then PLN 324 . Under the contract of 6 June 2000 she was again employed half-time for six months with a salary of PLN 400 per month. In 2002 she had registered an economic activity, however, it had not brought any income and she had to stop it in 2005.

18 . The Government submitted that the applicant was employed until 14 February 1997. Subsequently, she worked half time between 1 January and 31 August 1999 and half time between 20 June and 30 September 2000. On 20 May 2002 she registered an economic activity, which she stopped on 30 September 2005.

19 . In addition, the Government submitted that between 5 May 1994 and 30 September 2002 the applicant received a dependent ’ s pension ( renta rodzinna ) for her other daughter U. The applicant ’ s daughter K, for whom the applicant received the EWK pension, was employed as a juvenile employee from 2002.

C . 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 ) .

COMPLAINT

21 . The applicant complained in general terms that it was contrary to the principle of legal certainty to divest her of a right which had been granted to her. She relied on Article 14 of the Convention , alleging that the practice of reopening the EWK proceedings was limited to former SSB employees .

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 applicant invoked Article 14 of the Convention, however the gist of her complaint 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.”

2. The Government ’ s objections

23 . The Government raised objections to the admissibility of the case. They submitted that the applicant had failed to comply with the six-month rule and that her application constituted an abuse of the right to individual application.

24 . The applicant disagreed with the Government.

25 . As regards non-compliance with the six-month rule, the Court has considered in other EWK cases that the applicants should not be penalized 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, FrÄ…czek-PotÄ™ga v. Poland , no. 39430/04, § 55, 4 December 2012). In the present case a cassation appeal was lodged by the Ombudsman in the applicant ’ s interest. Accordingly, the final decision in the case under consideration was given by the Supreme Court on 25 November 2004, served on the applicant on 23 December 2004, whereas the applicant lodged her application with the Court on 13 June 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.

26 . The Court further notes that it has already examined identical objections regarding, among other things, abuse of the right of individual application 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.

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

1. The parties ’ submissions

27 . The Government maintained that the application was manifestly ill ‑ founded. They submitted that the interference with the applicant ’ s property rights had been lawful and justified. In particular, divesting the applicant 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 required to reimburse the sum of PLN 54,496.85 already paid to her.

28 . The Government also underlined that the applicant was employed, at least, during some part of the time when she received the EWK. In addition, at the time of revocation of the EWK pension she had been running a business activity. They further submitted that the applicant ’ s husband received a high salary. Lastly, they stressed that the applicant ’ s daughter, had been employed as a juvenile employee at her secondary vocational school.

29 . The applicant confirmed that she had worked for some time during the time she had been receiving the EWK pension. Initially in the SSB, however she worked special early morning hours (5.30 a.m. to 1.30 p.m. ). In addition, later on she had taken part time employment (4 hours a day). As regards her business the applicant submitted that it did not bring much profit. However, she had failed to produce any evidence which would confirm that her business did not bring any profits.

2. The Court ’ s assessment

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

31 . 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, consequently, 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 those previously examined cases 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 ; Antoni Lewandowski; Potok and Lew, cited above).

34 . In contrast, on the basis of the evidence in its possession, the Court considers that in the instant case the applicant was not faced with the total and immediate loss of her only source of income after the revocation of her pension because she ran her business when in receipt of the pension and after its revocation (see Rzepa v. Poland (dec.), no. 30361/04, 9 April 2013, § 34, and Mleczek v. Poland (dec.), no. 35547/04 , 5 December 2013, § 32,). Furthermore, the applicant ’ s daughter K, for whom the EWK pension was granted, undertook employment in 2002 (see paragraph 28 above). From the documents produced by the applicant it appears that during the time when she received the EWK pension she had been employed for eight months in 1999 and six months in 2000. The parties also agreed that the applicant at least for some time during the time when she received the EWK pension had been employed by the SSB. In addition, she started her business activity in May 2002 and she continued it until 30 September 2005. In her observations on the admissibility and merits of the present application the applicant failed to produce any convincing evidence confirming her difficult financial situation, in particular that her business activity brought little profit or no profit at all especially at the time of the revocation of her EWK pension or shortly afterwards, that is in the months following April 2003.

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 social 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, as already noted above, throughout these proceedings the applicant had another source of income.

36 . 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).

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

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

38 . Lastly, th e applicant might be understood as complaining under Article 14 of the Convention that the practice of reopening proceedings concerning EWK pensions had been limited to the former employees of the SSB.

39. 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).

40. It follows that the remainder of the application is manifestly ill ‑ founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Nona Tsotsoria Deputy Registrar President