FOURTH SECTION

DECISION

Application no . 35547/04 Irena MLECZEK against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 5 December 2013 as a Committee composed of:

George Nicolaou, President, Krzysztof Wojtyczek, Faris Vehabović, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 16 September 2004 ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Irena Mleczek , is a Polish national, who was born in 1962 and lives in Strzyżów . She was represented before the Court by Ms R. Strz ę pek , a lawyer practising in Strzyżów .

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 19 62 and lives in Strzy ż ów .

5 . The applicant is married and has two 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 an d revocation of the EWK pension

6 . On 3 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 .

7 . Along with her application for a pension, the applicant submitted, among other documents concerning her son ’ s health condition, a medical certificate issued by a specialist medical centre. The certificate sta ted that the child (born in 1992 ) suffered from asthma and that he was in need of h er parent ’ s constant care.

8 . On 10 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 762,45 Polish zlotys (PLN).

9 . On an unknown date the Rzeszów Social Security Board asked the Main Social Security Board ’ s doctor ( Główny Lekarz Orzecznik ) to inform it whether the applicant ’ s son 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 24 June 2002 the Rzeszów Social Security Board issued simultaneously two decisi ons in respect of the applicant . By virtue of o n e decision, the Board reopened the proceedings for retirement pension. By virtue of the other decision the Board revoked the initial decision granting a pension and refused to grant the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance. T he payment of the applicant ’ s pension was discontinued with effect of 1 July 2002.

11 . The applicant appealed against the respective decisions 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 4 April 200 3 the Rzesz ó w Regional Court ( Sąd Okręgowy ) dismissed the appeal. The Regional Court concluded on the basis of the evidence that the applicant ’ s child did not require his mother ’ s permanent care since his health condition did not significantly impair his 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.

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

14 . On 30 October 200 3 the Rzeszów Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal.

15 . On 17 March 200 4 the Supreme Court ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant. The decision was served on the applicant on 28 April 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 she and her husband had conducted the economic activity in the form of newsagents with newspapers, toys, etc. however, the business did not bring the expected profits. Between 7 September 2009 and 31 October 2010 she was receiving a disability pension in the amount of PLN 945.55 because she had been classified as partly unfit for work. On 1 January 2011 she took up employment at a hospital. As regards her husband, since 1979 he has been receiving a veteran ’ s pension due to an accident in the army. The applicant also submitted that she and her husband owned an agricultural property however the property did not bring any profits.

18 . The Government submitted that between 16 March 1982 and 31 October 2001 the applicant was employed . She resigned from employment in order to receive the EWK pension. On 13 November 2001 she registered her economic activity, which she stopped on 30 June 2002 and then began to run her own business again on 28 December 2004 and continued to run it at the time when the observations in the present case were submitted. In addition she had owned a property of 0.1822 ha a part of which, 0.0897 ha, was classified as agricultural property. From 1 October 2004 to 31 October 2009 she had a part-time employment. They further submitted that the applicant ’ s husband received a preferential veteran ’ s pension.

19 . In addition, the Government submitted that between 7 September 2009 and 31 October 2010 the applicant received a disability pension .

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 ) .

COMPLAINTS

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 5 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

22. 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 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 h is 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 o bjections

23 . T he 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.

The applicant disagreed with the Government.

24 . As regards non-compliance with the six-month rule, the Court has already 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). Accordingly, the final decision in the case under consideration was given by the Supreme Court on 17 March 200 4, served on the applicant on 28 April 2004, whereas the applicant lodged her application with the Court on 16 September 200 4 . 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.

25. 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

26. 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 7.960,60 already paid to her.

27 . The Government also underlined that after the revocation of the EWK pension the applicant ’ s financial situation has not changed significantly. On 13 November 2001 she started her business activity which, according to the Government, she continued throughout the whole period of receiving the EWK pension, until 30 June 2002. Subsequently, she started her business again on 28 December 2004. Between 1 October 2004 and 31 October 2009 she was employed. In addition, she had owned a farm with an area of agricultural land amounting to 0.0897 ha which could be a source of additional profit . They further submitted that the applicant ’ s husband received a preferential veteran ’ s pension.

28 . The applicant submitted that she had resigned from her employment in order to receive the EWK pension. As regards the farm she submitted that there was a residential building on the part of it and on the remaining part there were only trees; the applicant had no farm buildings or inventory and the property did not bring any profits. As regards her business the applicant submitted that “it did not bring the expected profits” and that “it was run rather as a form of therapy for her and her husband, to come out to people”. The applicant did not produce any evidence which would confirm that her business did not bring any profits. She only submitted a document dated 9 December 2004 which confirms that she had registered her activity on 13 November 2001. However, it does not mention that the activity was removed from the register or suspended. She did not comment the Government ’ s submission that her business activity was interrupted between 30 June 2002 and 28 December 2004. She further submitted that on 1 January 2011 she started work which, as she claims, proves that her business did not bring sufficient means of subsistence.

2. The Court ’ s assessment

29 . The relevant general principl es 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).

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 ).

30 . 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).

31 . However, in assessing the proportionality of this interference, the Court considers that the present case differs substantially from 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 ; A ntoni Lewandowski; Potok and Lew, cited above).

32 . 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 ). From the document produced by the applicant it emerges that she started her business activity two weeks after the EWK pension had been granted to her and that she continued it throughout the whole period of receiving the pension, at least until 9 December 2004 (date of the document, see paragraph 28 above). 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 June 2002.

The applicant ’ s submission about her employment undertaken in 2011 cannot be considered as sufficient proof of her difficult financial situation in 2002 (see paragraph 28 above).

33 . 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 .

34 . 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) .

35 . 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.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

36 . The applicant might be understood as raising also other complaints, but she does not rely on any further provisions of the Convention (see paragraph 21 a bove).

However, the Court considers that any issues that may be raised by the applicant under the Convention have already b een adequately addressed above.

37. It follows that the remainder of the application must likewise be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı George Nicolaou Deputy Registrar President