FOURTH SECTION

DECISION

Application no . 29995/05 Janina MAZUR against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 15 October 2013 as a Committee composed of:

David Thór Björgvinsson , President, Vincent A. De Gaetano, Krzysztof Wojtyczek, judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 9 August 2005,

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 Janina Mazur , is a Polish national, who was born in 1962 and lives in Mielec .

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 summari z ed as follows.

4 . The applicant has two children. Prior to her application for a pension she had been employed.

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

5 . On 25 October 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, among other documents concerning her daughter ’ s health condition, a medical certificate issued by a specialist medical centre . The certificate stated that the child (born in 1992 ) suffered from chronic rhinitis, atopic skin inflammation, adenoiditis and periodic bronchitis and was in need of the parent ’ s constant care.

7 . On 1 February 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 625,09 Polish zlotys (PLN). In addition, the applicant received a family allowance which, together with the pension, amounted to PLN 698 ,89 . The starting date for payment of the pension was set for 1 January 2001 .

8 . The applicant was employed as nurse until 31 December 2000 when her employment contract was terminated by the employer for organizational reasons.

9 . On 12 July 2002 the SSB 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. 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.

10 . On 31 July 2002 the SSB issued simultaneously two decisions in respect of the applicant. By virtue of the first decision, the payment of the applicant ’ s pension was discontinued with effect from 1 August 2002 . By virtue of the second decision, the SSB 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”) .

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 protection of vested rights.

12 . On 19 September 2003 the Tarnobrzeg Regional Court ( Sąd Okręgowy ) amended the challenged decisions and granted the applicant a right to early retirement with effect from 1 August 2002. The court based its judgment on medical expert evidence according to which the applicant ’ s daughter had been in need of a constant care before 31 December 1998.

13 . On an unspecified date the Rzeszów SSB appealed.

14 . On 26 February 2004 the Rzeszó w Court of Appeal quashed the challenged judgment and remitted the case.

15 . On 23 August 2004 the Tarnobrzeg Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s appeal. The court held that the early retirement had been correctly granted to the applicant because at the relevant time her daughter indeed needed constant care. It found however that the applicant ’ s daughter ’ s state of health had improved as of 3 July 2002 and therefore the applicant was no longer eligible for the early retirement pension.

16 . The applicant lodged an appeal against the first ‑ instance judgment, which was dismissed on 28 December 2004 by the Rzeszów Court of Appeal. The court found the first ‑ instance judgment correct as regards the merits although it did not accept its reasoning. According to the Court of Appeal the applicant was not eligible for the early retirement because she had not terminated her employment before 1 January 1999.

17 . The applicant lodged a c a ss a tion appeal. On 5 April 2005 the Supreme Court refused to entertain the appeal.

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

18 . Following the social security proceedings the applicant was not ordered to return her early ‑ retirement benefits paid by the SSB, d espite the revocation of her right to the early ‑ retirement pension.

19 . The Government submitted that the applicant had bee n employed , working part ‑ time since 1 February 2002. The reasoning of the Court of Appeal ’ s judgment of 23 August 2004 confirms that the applicant was employed on a part ‑ time basis on 3 July 2002. In any event, the applicant had a source of income at the time when her early pension was revoked. Subsequently, she undertook full time employment and she works to date.

20 . The applicant maintained that the income from her employment never attained the level of the official average remuneration in Poland.

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 ) .

COMPLAINTS

22 . The applicant complained under Articles 6, 8 and 13 of the Convention and, in substance, under Article 1 of Protocol No. 1 to the Convention about the reopening of the social security proceedings which had resulted in the revocation o f 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

23 . 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

24 . The Court notes that the Government raised several objections to the admissibility of the case. They submitted that the application was incompatible ratione materiae and ratione personae with the Convention, constituted an abuse of the right of individual application, and that the applicant had failed to exhaust domestic remedies, comply with the six ‑ month rule and, finally, had suffered no significant disadvantage.

The applicant disagreed with the Government.

25 . 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 5 April 200 5 whereas the applicant lodged her application with the Court on 9 August 200 5 . 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 abuse of the right of individual application, non ‑ exhaustion as regards the applicant ’ s failure to lodge a constitutional complaint, and no significant disadvantage and dismissed them, 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.

27. 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

2 8 . 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 11,279. 35 already paid to her.

29 . The Government also underlined that the applicant had stopped working for one year only and had been employed part ‑ time while in receipt of the EWK pension. She had continued working full ‑ time after the revocation of the pension. In 2002 her income amounted to some 16. 33% of the official average salary in Poland and these figures rose in further years; 18 .17% in 2003, 39.39% in 2004, 37. 83% in 2005, 57.03% in 2006, 63.64% in 2007, 59. 49% in 2008 and 56. 19% in 2009. Moreover, the applicant was receiving a child ‑ care benefit for her two children M.M. and A.M and a nursery benefit for her daughter A.M. Furthermore, the applicant ’ s husband remained employed and earned some 10 to 30% above the official average salary in Poland . The Government also submitted that the applicant ’ s other daughter, M.M., was employed between 12 February 2004 and 31 January 2005 and that she has been employed since 1 July 2009.

30 . The applicant submitted that the decision to revoke her early retirement pension placed on her an excessive, disproportionate burden.

2. The Court ’ s assessment

31 . 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).

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 the cases it previously 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; Potok ; and Lew, cited above).

34 . 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 had started a part ‑ time employment before the pension was revoked ( see Rzepa v. Poland , no. 30361/04 , 9 April 2013 , § 34) . It is true that, as the Government submitted, in the first two years of her post ‑ pension employment she gained some 16% ‑ 18% of the official average salary in Poland and her situation might have been difficult. However the applicant was not left without any resources; she worked already when her pension was revoked and the figures concerning her income rose from 39% to 63% of the official average salary in the years following the revocation of the pension (see paragraph 2 9 above).

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 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 (approx. 2.5 years) . However, as already noted above, throughout these proceedings the applicant was employed.

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 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 . The applicant also alleged violations of several other provisions of the Convention (see paragraph 22 above).

However, the Court considers that any issues that may be raised by the applicant under those provisions have already been adequately addressed above.

39 . In any event, in all the previous similar cases examined to date, the Court considered that the complaints under Articles 6, 8 and 13 o f the Convention either did not require a separate examination or should be dismissed as manifestly ill ‑ founded (see, among many other examples, Moskal , §§ 77 ‑ 99 and Antoni Lewandowski , §§ 86 ‑ 88, cited above ; see also paragraph 26 above).

40 . It follows that the remainder of the application must likewise be rejected under Ar ticle 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Françoise Elens-Passos David Thór Björgvinsson Registrar President