FOURTH SECTION

DECISION

Application no . 1798/05 Adela RUDOLF 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 28 December 2004,

Having regard to the observations 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 Adela Rudolf, is a Polish national, who was born in 1959 and lives in Tuszów 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 is married and has children. Prior to her application for an EWK pension she had been employed since 1999 by the same employer. Since 1 April 2000 the applicant had been employed on a half-time basis.

1. Proceedings concerning the grant and revocation of the EWK pension

5. On 25 May 2001 the applicant filed an application with the Rzeszów Social Security Board (ZakÅ‚ad UbezpieczeÅ„ SpoÅ‚ecznych – “the SSB”) 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.

6. Along with her application for a pension, the applicant submitted, among other documents concerning her son ’ s health, a medical certificate issued by a specialist medical centre. The certificate stated that the child (born in 1988) suffered from liver damage caused by hepatitis and was in need of the parent ’ s constant care.

7. On 19 September 2001 the SSB issued a decision granting the applicant the right to an early ‑ retirement pension in the net amount of around 470 Polish zlotys (PLN) per month.

8. The SSB initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. Shortly afterwards the applicant informed the SSB of her resignation with effect from 5 October 2001. The payment of the pension started on 1 October 2001.

9. On 19 November 2001 the applicant was re ‑ employed by her previous employer, a sewing company, as a seamstress, on a part-time basis (one ‑ forth).

10. On 11 April 2002 the SSB requested 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. On an unspecified date the doctor stated that, on the basis of the medical documents, the child in question could not be considered as ever having required such care.

11. On 24 April 2002 the SSB issued a decision by virtue of which the payment of the applicant ’ s pension was discontinued with immediate effect (1 May 2002). On 25 April 2002 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 ( Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki – “the 1989 Ordinance”) .

12. 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 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 9 October 2003 the Tarnobrzeg Regional Court ( Sąd Okręgowy ) dismissed the 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.

The court also established that the a pplicant had been employed on a half-time basis by her previous employer since November 2002.

14. The applicant lodged an appeal against the first-instance judgment which was dismissed on 18 February 2004 by the Rzeszów Court of Appeal ( Sąd Apelacyjny ).

15. On 9 July 2004 the Supreme Court ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant.

2. 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 the early-retirement pension.

17. The applicant submitted, in general, that after the revocation of the EWK pension her financial situation had been difficult. She submitted 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.

18. The applicant submitted copies of some of her employment contracts from the relevant period. Under the contract of 19 November 2001 she was employed by her previous employer on a part-time (one-fourth) basis until 30 June 2002 with a salary of PLN 200 (approximately EUR 50) per month. On 1 July 2002 another employment contract was concluded under which she was again employed on a part-time (one-fourth) basis. Under the contract of 1 July 2004 she was employed on a half-time basis with a monthly salary of PLN 450 (approximately EUR 112). From 2 August 2004 she was employed full-time with a salary of PLN 900 (approximately EUR 225) per month.

19. The Government submitted that the applicant had been employed continuously while receiving the EWK pension and at the time the pension was revoked. The applicant had remained employed until 2009 and since 2009 she had been self-employed. The Government submitted that the applicant ’ s gross annual income had been PLN 3,200 (approximately EUR 800) in 2002, PLN 4,800 (approximately EUR 1,200) in 2003, PLN 7,470 (approximately EUR 1,867) in 2004, PLN 10,533 (approximately EUR 2,633) in 2005, PLN 10,800 (approximately EUR 2,700) in 2006, PLN 11,166 (approximately EUR 2,791) in 2007, PLN 10,682 (approximately EUR 2,670) in 2008, PLN 11,026 (approximately EUR 2,756) in 2009. Moreover, the applicant ’ s husband had had gainful employment. In addition, the applicant owns 5. 48 ha of agricultural land. Since 2004 she had been in receipt of agricultural subsidies from the European Union funds. The applicant ’ s children had started working in 1999, 2006 and 2006 respectively.

B. 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 under Article 6 of the Convention and 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 her right to the EWK pension.

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 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 several objections to the admissibility of the case. They submitted that the application was incompatible ratione materia e and ratione personae with the Convention and constituted an abuse of the right of individual application. They also argued that the applicant had failed to comply with the six ‑ month rule as the cassation appeal had not been an effective remedy in the instant case.

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 penalised for having tried to file a cassation appeal with the Supreme Court in order to avoid any risk of having their cas e 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 9 July 2004 whereas the applicant lodged her application with the Court on 28 December 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.

25. The Court further notes that it has already examined identical objections regarding abuse of the right of individual application, and dismissed them, in the follow ‑ up cases to Moskal (see, for instance, Antoni Lewandowski , cited above, §§ 45 ‑ 53). It sees no reason to depart from its previous findings.

26. Moreover, the Court finds that it is not called upon to deal with the remaining admissibility issues as the application is in any event inadmissible for the reasons stated below.

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 4,290 already paid to her.

28. The Government also underlined that the applicant had stopped working for one month only and had been employed while in receipt of the EWK pension. She had continued working after the revocation of the pension. Moreover, the applicant ’ s real intention was to supplement her salary by means of the pension and not to stay at home in order to take care of her son.

29. The applicant submitted that divesting her of her acquired right to an early-retirement pension had amounted to an unjustified deprivation of property. She maintained that it had not been forbidden under the domestic law for an individual to work while in receipt of an EWK pension as the child ’ s care could have been provided by another member of the family or hired help. The applicant claimed that she had borne an excessive burden in that the decision of 25 April 2002 had deprived her of her main source of income with immediate effect.

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 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 ).

31. 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).

32. 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 , Antoni Lewandowski and Frączek-Potęga , cited above).

33. 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 ). Nor did she permanently resign from her job after her right to the EWK pension had been confirmed by the authorities; indeed, she resumed employment with the same employer after a mere one month after her resignation (see paragraphs 9, 18 and 19 above).

It is true that on 25 April 2002, when the SSB issued the decision on the revocation of the EWK pension, the applicant was only employed on a part ‑ time (one-fourth) basis (see paragraphs 9 and 18 above). However, it cannot be overlooked that, before her application for an EWK pension, the applicant in the instant case was also only employed on a part-time ( half ‑ time) basis (see paragraph 4 above). As established by the domestic court, already in November 2002, some six months after the revocation of her pension, the applicant was again employed on a half-time basis (see paragraph 13 above). Eventually, from August 2004, she was employed full-time (see paragraphs 18 and 19 above). Thus, even though the applicant ’ s income at the time of the revocation of her pension could be regarded as modest, the Court notes that she was continuously employed by the same employer and her income rose considerably in further years.

Moreover, although the applicant was in receipt of both the EWK pension and a salary for some five months, the State did not require her to return the amount of the pension which had been undul y paid (see paragraphs 16 and 27 above).

34. 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 above, throughout these proceedings the applicant was employed.

35. 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 .

36. 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

37. The applicant also alleged violation of Article 6 of the Convention (see paragraph 21 above).

38. However, the Court considers that any issues that may be raised by the applicant under this provision have already been adequately addressed above (see paragraphs 30–36 above).

39. 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 22 above).

40. 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