FOURTH SECTION

DECISION

Application no . 43610/04 Barbara SKUBEL against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 11 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 26 November 2004,

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 Barbara Skubel, is a Polish national, who was born in 1963 and lives in Tuszow Narodowy.

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 was born in 1963 and lives in Tuszow Narodowy.

5 . Prior to her early retirement she had been employed for 23 years and had paid her social security contributions to the State.

1. Proceedings concerning the gra nt and the revocation of an EWK pension

6 . On 9 November 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) 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.

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 doctor. The certificate stated that the child suffered from migraines and that she was in need of her parent ’ s constant care.

8 . On 26 November 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 660 Polish zlotys (PLN) per month.

9 . Due to the applicant ’ s employment the Social Security Board initially suspended the payment of the pension. The payment started on 1 February 2002 after the applicant had resigned from her job.

10 . On 26 August 2002 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.

11 . On 4 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 (1 September 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 ( 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”).

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 10 September 2003 the Rzeszów Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s appeal.

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

15 . On 28 January 2004 the Rzeszów Court of Appeal dismissed the applicant ’ s further appeal. 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 had not satisfied the requirement of necessary permanent care.

16 . On 17 June 2004 the Supreme Court refused to examine the applicant ’ s cassation appeal.

2. The applicant ’ s financial situation

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 an early-retirement pension.

18 . The applicant resigned from her permanent employment as a school cook when she was granted the EWK pension .

19 . According to the Government the applicant resumed her employment on an unspecified date after the payment of the EWK pension commenced and continued it until 30 June 2002. Therefore, she worked simultaneously with receiving the pension. She started working again on 1 September 2002 thus on the day of revocation of her EWK pension she was employed . The Government further submitted that the applicant ’ s husband had been constantly employed.

20. From the documents in the file it appears that on 1 September 2002 she indeed accepted a civil law contract ( umowa zlecenia ) for 9 months from her former employer but was unemployed in June, July and August 2003. Afterwards, she was working again between 1 September 2003 and 30 June 2004. It appears that i n September 2004 the applicant started a permanent employment.

B. Relevant domestic law and practice

21 . 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

22 . The applicant complained in substance under Article 1 of Protocol No. 1 to the Convention about divest ing her of her right to the EWK pension.

THE LAW

ALLEGED VIOLATI ON OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

A. Preliminary issues

1. Scope of the case before the Court

23 . The applicant complained that divesting her, in the circumstances of the case, of her acquired right to an early-retirement pension amounted to an unjustified deprivation of property. This complaint 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

24 . The Court notes that the Government raised several 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.

25 . The applicant disagreed with the Government ’ s arguments.

26 . 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 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). Accordingly, the final decision in the case under consideration was given by the Supreme Court on 17 June 2004, whereas the applicant lodged her application with the Court on 26 November 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.

27 . The Court further notes that it has already examined identical objection regarding abuse of the right of individual application and dismissed it, in the follow ‑ up cases to Moskal (see, for instance, Antoni 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

28 . The applicant submitted that divesting her, in the circumstances of the case, of her acquired right to an early-retirement pension had amounted to an unjustified deprivation of property. She underlined that she had resigned from her job when her EWK pension was confirmed and its sudden revocation forced her to quickly find again a new employment even on worse conditions.

29 . The Government claimed 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 general interest. There was also a reasonable relationship of proportionality between the interference and the interests pursued. Moreover, since the applicant found a new job at the same time as the EWK pension was withdrawn she had suffered no detriment or financial hardship.

2. The Court ’ s assessment

(a) General principles

30 . The relevant general principles are set out in the Moskal judgment, cited above, paragraphs 49-52. The Court would nevertheless reiterate that any interference by a public authority with the peaceful enjoyment of possessions should be lawful and must pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Moskal , cited above, §§ 49 and 50).

(b) Application of the above principles to the present case

(i) Whether there has been an interference with the applicant ’ s possessions

31 . The parties did not dispute that the decisions of the Rzeszów Social Security Board of 4 September 2002, subsequently validated by three court instances (the regional court, the court of appeal and the Supreme Court), which deprived 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. The Court sees no reason to hold otherwise.

(ii) Lawfulness of the interference and legitimate aim

32 . As in the Moskal case the Court considers that this interference was provided for by law and pursued a legitim ate aim, as required by Article 1 of Protocol No. 1 to the Convention (see Moskal , cited above, §§ 56, 57 and §§ 61 , 63 and also Iwaszkiewicz v. Poland , no. 30614/06, §§ 47, 48, 26 July 2011).

(iii) Proportionality

33 . In the instant case, a property right was generated by the favourable evaluation of the applicant ’ s dossier attached to the application for a pension, which was lodged in good faith, and by the Social Security Board ’ s recognition of the right (see paragraphs 6 - 8 above). Before being invalidated the decision of 26 November 2001 had undoubtedly produced effects for the applicant.

34 . 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).

35 . The applicant was granted the EWK pension on 26 November 2001 however she resigned from her job only a few months later. She had been receiving her pension for seven months, from 1 February 2002 until 31 August 2002. On 1 September 2002 she had resumed her employment as a school cook thus on 4 September 2002, when the right to the EWK pension was revoked, she was employed. She continued this job until 30 May 2003 , was unemployed for three months , and resumed her employment as a school cook on 1 September 2003 (see paragraph 20 above) . It follows that as a result of the revocation of the pension, in the crucial period directly following the revocation, she was not faced with the total and immediate loss of her only source of income (see Rzepa v. Poland (dec.), no. 30361/04, 9 April 2013, § 34).

36. Moreover, the applicant did not permanently resign from her job after her right to the EWK pension had been confirmed by the authorities. The Government submitted that, while in receipt of the EWK pension, the applicant resumed employment on an unspecified date and continued it until 30 June 2002. The applicant did not contest this allegation. 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 17 above).

37 . 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) .

38 . 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 Nona Tsotsoria Deputy Registrar President