Resolution CM/ ResDH ( 2013)215 Łuczak against Poland

Execution of the judgment of the European Court of Human Rights

(Application No. 77782/01, judgment of 27 November 2007, final on 2 June 2008)

(Adopted by the Committee of Ministers on 24 October 2013 at the 1182nd meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention , to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)953 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

A ction report [1]

Information about the measures to comply with the judgment in the case

Łuczak against Poland

Case description

Ł uczak , A pplication No. 77782/01 , judgment of 27/11/2007, final on 02/06/2008

The case concerns the discrimination of the applicant on account of his nationality (French) in the admission to the farmers ’ social security scheme (violation of Article 14 in conjunction with Article 1 of Protocol No. 1).

The applicant is a French national living in Poland for several years, in employment for a number of years and consequently affiliated to the general social security scheme carried by the Social Security Board. In 1997 , the applicant bought a farm and decided to make a living from it. On 2 December 1997 , the applicant requested the Częstochowa branch of the Farmers ’ Social Security Fund ( Kasa Rolniczego Ubezpieczenia Społecznego ) to admit him to the farmers ’ social security scheme. This application was refused on 16 December 1997 on the ground s that he was not a Polish national – a condition provided by the Farmers ’ Social Security Act of 20 December 1990.

As a result, the applicant was not granted the right to social insurance in case of incapacity for work caused by illness, disability, old age or parenthood. It should be noted, however, that under the Farmers ’ Social Security Act in its version in force until 2 May 2004, an uninsured farmer could benefit from surrogate insurance protection on account of his/her spouse ’ s being covered by the farmers ’ social insurance scheme. Pursuant to Articles 10(1 )( 2) and 10(1)(4) of the Farmers ’ Social Security Act, as from 1 January 1997 an insured farmer ’ s closest uninsured relative was entitled to a one-off compensation, if the said relative was not the insured farmer ’ s employee and suffered injuries in a work-related accident that took place while helping the farmer in his/her agricultural business. Under this provision, a spouse is also considered a farmer ’ s closest relative. In the event of a closest relative ’ s death due to a farm work-related accident, entitled members of his/her family were eligible for a one-off compensation. Compensation for a work-related accident in agriculture was awarded to the closest relative on the same terms and in the same amount as were applicable to an insured farmer.

The European Court found that the difference in treatment in admission to the Polish farmers ’ social security scheme on account of the applicant ’ s nationality was not justified by the general interest and the domestic authorities had not adduced any reasonable and objective justification for the distinction which meets the requirements of Article 14 of the Convention, even having regard to their margin of appreciation in the area of social security.

Just satisfaction was awarded by the European Court for non-pecuniary and pecuniary damage (covering also unpaid contributions towards his retirement pension).

Ł uczak A pplication N o . 77782/01

Pecuniary and

non-pecuniary damage

Costs and expenses

Total

5 000 EUR

5 000 EUR

10 000 EUR

Paid on 15 /07/2008

Individual measures in this case are closely linked to general measures. From the change in the law in 2004, the applicant had the possibility to join the social insurance for farmers scheme (see general measures for more information).

In addition, the applicant could apply to the President of the Farmers ’ Social Security Fund for extraordinarily granting him the farmer ’ s pension in specific circumstances.

In these circumstances, no other individual measure appears necessary.

II. General measures

On 2 April 2004 , the 1990 Act was amended because of Poland ’ s accession to the European Union, so that nationals of EU m ember States and foreign nationals having residence permits could join the farmers ’ scheme. It entered into force on 2 May 2004. Consequently, the difference in treatment in the farmers ’ scheme was remedied.

Pursuant to article 55 of the Farmer s ’ Social Security Act of 20/12/1990 ( ustawa o ubezpieczeniu społecznym rolników ), there exists a possibility to apply to the President of the Farmer s ’ Social Security Fund for extraordinarily granting the farmer ’ s pension in specific circumstances , even if the person concern does not comply with all the requirements provided by law , on condition of being deprived of other financial resources and not having the possibility to get them due to the age or state of health.

When determining the amount of farmers ’ retirement and disability pensions, each year of a farmer ’ s social insurance coverage corresponds to 1% of the lowest retirement pension, while the State Treasury pays for the remaining share, i.e. 85% to 95% of the lowest retirement pension. Consequently, although contributions themselves have a very limited impact on the size of a pension, a pension may not be awarded without them. Thus the amount of a retirement pension that the President of the Agricultural Social Insurance Fund can award by way of exception is comparable to other benefits. Article 55(2) of the Farmers ’ Social Security Act only provides that a benefit awarded by way of exception may not exceed the amount of a corresponding retirement or disability insurance benefit. Consequently, the period during which a given person was not covered by this insurance on account of his/her lack of Polish citizenship will not result in his/her benefit being lower than allowances that are awarded under a standard procedure. On the other hand, such a benefit will not be higher than standard allowances either.

It should also be added that if the insurance period of a person claiming a farmers ’ retirement pension exceeds twenty years, the share of this pension financed by the State Treasury decreases by 0.5% for each year over the 20 th year of insurance, but may not be below 85% of the lowest retirement pension. A characteristic feature of these benefits is the fact that they level off when the insurance period exceeds 20 years and that their amounts are comparable.

The Ministry of Agriculture and Rural Development has consulted the head office of the Agricultural Social Insurance Fund on all measures that have been taken in this case so far. Therefore , the judgement in the Ł uczak v. Poland case was disseminated among all relevant bodies.

In these circumstances, no other general measure appears necessary .

III. Conclusions of the respondent S tate

The government considers that further individual measures are not necessary in the present case and that the general measures adopted will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Information submitted by the Polish authorities on 4 September 2013