FOURTH SECTION

DECISION

Application no . 35766/05 Halina IDZIK 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. D e Gaetano, Krzysztof Wojtyczek, judges, and F rançoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 19 September 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 Halina Idzik, is a Polish national, who was born in 1955 and lives in Sędziszów Małopolski.

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 1955 and lives in Dębica .

5 . The applicant is married and has three children. Prior to her application for an early-retirement pension she had been employed until 1995 and paid social security contributions to the State. Since 1995 the applicant was receiving a disability pension.

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

6 . On 29 June 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 stated that the child (born in 1986) suffered from urinary bladder disorder, urinary tract infection, pyelonephritis and rhino pharyngitis and that he was in need of his parent ’ s constant care.

8 . On 3 August 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 698 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 31 May 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one 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 eventually refused to grant the applicant the right to an early ‑ retirement pension under the scheme provided for by the 1989 Ordinance. By a decision of 8 August 2002 the payment of the applicant ’ s pension was discontinued with effect of 1 June 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 30 March 2004 the Rzeszów 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 11 August 2004 the Rzeszów Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal.

15 . On 28 January 2005 the Supreme Court ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant. The decision was served on the applicant on 24 March 2005.

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 an early-retirement pension.

17 . The applicant submitted that since 2002 her daughter U.P was married and lived in a separate household. As of 1 October 2002 U.P. was employed by the applicant as a shop assistant in a shop ran by the applicant. As regards her son, he had been employed between 13 November 2009 and 17 January 2011. However, he was dismissed on the latter date after a six months ’ long sick leave due to an illness. She further submitted a copy of her 2009 tax return from which it appeared that she had no income in that year.

18 . The Government submitted that between 15 March 1995 and 30 April 2001 the applicant had been receiving a disability pension in the amount of 391 PLN. On 1 May 2001 it was suspended due to the fact that the applicant regained her working capacity. On 1 May 2001 the applicant began a business activity which she continued throughout the period of EWK and after its revocation. In addition, between 1 January 2001 and 30 June 2009 she had owned a farm with an area of agricultural land amounting to 1,05 ha. After 1 July 2009 her farm measured 0 ,59 ha. The Government submitted information from the Central Statistical Office according to which an average yearly income from 1 ha of agricultural land between 2001 and 2009 ranged from PLN 980 to PLN 2,701. They further submitted that the applicant ’ s husband received a pre-retirement benefit. All three children received scholarships, unemployment benefits or salaries.

19 . In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant ’ s situation.

20 . Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2015.

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 14 and 53 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 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

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 applicant had failed to comply with the six-month rule and that her application constituted an abuse of the right to individual application. They further claimed that the applicant had failed to exhaust domestic remedies because, first, she had failed to contest the final ruling by means of a constitutional complaint. They also argued that she 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 penalis ed 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 28 January 2005, served on the applicant on 24 March 2005, whereas the applicant lodged her application with the Court on 19 September 2005. 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

28 . 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 9,730. 80 already paid to her.

29 . The Government also underlined that after the revocation of the EWK pension the applicant ’ s financial situation has not changed significantly. She had not stopped working for the purposes of the early retirement pension because from 1995 until 30 April 2001 she was receiving a disability pension. Subsequently, on 1 May 2001 she started her business activity which she continued throughout the whole period of receiving the EWK pension. In addition, between 1 January 2001 and 30 June 2009 she had owned a farm with an area of agricultural land amounting to 1,05 ha. After 1 July 2009 her farm measured 0 ,59 ha. The Government submitted information from the Central Statistical Office according to which an average yearly income from 1 ha of agricultural land between 2001 and 2009 ranged from PLN 980 to PLN 2,701. They further submitted that the applicant ’ s husband received a pre-retirement benefit. All three children received scholarships, unemployment benefits or salaries.

30 . The applicant submitted that since 2002 her daughter U.P was married and lived in a separate household. As of 1 October 2002 U.P. was employed by the applicant in her business. As regards her son, he had been employed between 13 November 2009 and 17 January 2011. However, he was dismissed on the latter date, after a six months ’ long sick leave due to an illness. As regards the income from her business she only submitted a copy of her 2009 tax return from which it appeared that she had no income in that year. The applicant did not produce any evidence or submit any comment as regards her income in the years 2001-2008. As regards the farm she submitted that she had no income from it because she had leased it free of charge to a third person.

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 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).

34 . In contrast, in the instant case the applicant did not have to give up her employment in order to receive the pension, as a result of the revocation of the pension she was not faced with the total and immediate loss of her only source of income as 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). She was receiving a disability pension prior to being granted a right to the EWK pension. The disability pension was discontinued at the end of April 2001 because the applicant had regained her working capacity. Immediately afterwards she set up her own business which she ran throughout the whole period of receiving the EWK pension. The Court considers that 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 after May 2002. The applicant only produced a copy of her tax declaration for the year 2009, however, this document obviously does not relate to the applicant ’ s financial situation in the period concerned (see paragraph 17 above).

Moreover, the State did not require the applicant to return the amount of the pension which had been unduly paid (see paragraph 28 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 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.

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 14 of 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 24 above). Additionally, the Court considers that the case raises no issue under Article 53 of the Convention.

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.

             Françoise Elens-Passos David Thór Björgvinsson Registrar President