FOURTH SECTION

DECISION

Application no . 38257/07 Halina PIECHOTA against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 26 November 2013 as a Committee composed of:

Ledi Bianku , President, Paul Mahoney, Krzysztof Wojtyczek , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 28 August 2007 ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Halina Piechota , is a Polish national, who was born in 1957 and lives in Mielec .

2 . The Polish Government (“the Government”) were represented by 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 two children. Prior to her application for pension she had been employed.

Proceedings concerning the grant and revocation of the EWK pension

5 . On 27 December 2000 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.

6 . Along with her application for a pension, the applicant submitted a medical certificate issued on 22 December 200 0 by a specialist medical center . The certificate stated that the child (born in 1994) suffered from chronic allergic infections of upper respiratory tract, nocturnal enuresis, malabsorption , as well as psychological and neurological problems, and was in need of the parent ’ s constant care.

7 . On 26 January 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an early ‑ retirement pension to the net amount of 536 Polish zlotys (PLN).

8 . The Social Security Board 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 and the pension started to be paid as of 1 February 2001.

9 . The applicant was employed part-time until the end of January 2001. On 5 February 2001 she resumed the same part-time employment.

10 . On an unknown date the Rzeszów Social Security Board requested 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. On 18 September 2002 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 . By a decision of 11 June 2002 the Rzeszów Social Security Board discontinued the payment of the applicant ’ s pension with immediate effect (1 June 2002). By virtue of the second decision, issued on 12 June 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.

13 . On 29 June 2004 the Tarnobrzeg Regional Court ( Sąd Okręgowy ) dismissed the appeal. The Regional Court concluded on the basis of the evidence, including expert medical evidence, that while indeed the applicant ’ s child suffered from upper respiratory tract infection, emotional oversensitivity and low resistance to stress, she did not require her mother ’ s permanent care since her health condition did not significantly impair her body 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 applicant further appealed against the first-instance judgment.

15 . On 24 November 2004 the Rzeszów Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal. The court upheld the finding of the Regional Court.

16 . On 18 March 2005 the Supreme Court ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant. The decision was served on the applicant on 6 April 2005.

B . Relevant domestic law and practice

17 . The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland , no. 10373/05, § § 31-34, 15 September 2009.

COMPLAINTS

18 . The applicant alleged under Articles 6, 8, 14 of the Convention and Article 1 of Protocol No 1 to the Convention that the ex-officio reopening of the social security proceedings, which had resulted in the quashing of the final decision granting her a right to a pension, was in breach of the principle of legal certainty and amounted to an unjustified deprivation o f property.

THE LAW

19. T he Government raised several objections to the admissibility of the case. They submitted that the application constituted an abuse of the right of individual petition that the applicant had failed to exhaust domestic remedies and failed to comply with the six ‑ month rule. In this respect they stressed that the proceedings in the case came to an end on 18 March 2005 and while the Supreme Court ’ s judgment dismissing the applicant ’ s cassation appeal was served on the applicant on 6 April 2005, she lodged her application with the Court only on 24 December 2007.

20. The Court notes that in 2005 the applicant had lodged her first application alleging a violation of Articles 6, 8 and 14 of the Convention. This application was registered under the number 20791/05 and declared inadmissible on 11 October 2005. The present application, concerning the same set of proceedings was lodged with the Court on 28 August 2007 that is almost two years after the 2005 application had been declared inadmissible. Therefore, it cannot be considered as continuation of the first application.

21. In so far as the Government alleged that the applicant failed to comply with the six month time-limit, the Court observes that Article 35 § 1 of the Convention provides that the six -month period runs from the final decision in the process of exhaustion. In the present case the Supreme Court refused to entertain the applicant ’ s cassation appeal on 18 March 2005. This decision was served on the applicant on 6 April 2005 and therefore more than six months before the introduction of the case before the Court .

22 . The Court considers that in the circumstances of the present case it is not necessary to examine the Government ’ s remaining objections concerning the admissibility of the present application.

23 . It follows that the application is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Ledi Bianku Deputy Registrar President