Communicated on 7 September 2020 Published on 28 September 2020

FIRST SECTION

Application no. 1478/14 Bo ż enna BĄCALSKA against Poland lodged on 20 December 2013

STATEMENT OF FACTS

1 . The applicant, Ms Bożenna Bącalska , is a Polish national, who was born in 1943 and lives in Józefów .

The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . For 25 years the applicant was a life partner of a certain D.J. who had formally been married to another woman. The couple lived together and raised each other ’ s children from their previous relationships.

4 . D.J. was a Presidential Palace ’ s employee. In 2010, he was killed in the crash of the presidential plane.

5 . On 12 April 2010 the Polish Council of Ministers passed a resolution (no. 52/2010), which opened the possibility to the families of the victims of the plane crash to claim special pensions.

6 . The applicant, who was left with the income of 290 euros (EUR), applied for a pension under the above-mentioned scheme.

7 . On 12 January 2011 the Prime Minister dismissed the applicant ’ s application on the grounds that she had not fulfilled the legal requirements for the pension. In particular, the Prime Minister found the applicant, despite being D.J. ’ s life partner of 25 years, not to be his “family”.

8 . Upon the applicant ’ s appeal, on 21 June 2011 the Warsaw Regional Administrative Court quashed the Prime Minister ’ s decision, holding that the Prime Minister could not narrow down the definition of the family to exclude unmarried life partners.

9 . On 4 January 2012 the Supreme Administrative Court dismissed the cassation appeal brought by the State, holding that pursuant to Section 82 of the Law of 17 December 1998 on pensions from the Social Security Fund ( Ustawa o emeryturach i rentach z Funduszu UbezpieczeÅ„ SpoÅ‚ecznych , “the 1998 Law on pensions”), the Prime Minister was entitled – “in particularly justified cases”- to award a social benefit in line with different requirements and in a different amount to those set out in the law. The court concluded that the 2010 plane crash was certainly a “particularly justified case”. The resolution adopted by the Council of Ministers in 2010, while aiming at offering financial aid to the families of the tragically killed victims, did not employ the term: “family member”. The Prime Minister should therefore have interpreted the applicable norm in light of wider regulations, especially, the 1998 Law on pensions, the Law of 12 March 2004 on welfare ( Ustawa o pomocy spoÅ‚ecznej ), as well as in light of a well ‑ established case-law of administrative courts on the notion of a “family”.

10 . On 16 May 2012 the Prime Minister dismissed the applicant ’ s pension application for the second time. The Prime Minister considered that the applicant did not qualify for the financial aid. In his view, expanding the group of legitimate persons to all the partners of the victims would breach moral rules and social interests. Moreover, the applicant was not indigenous, as she had not claimed any welfare benefits, lived in a house which she owned and received pension in the amount of EUR 281. Moreover, the applicant could have claimed a one-off financial aid available to the families of the victims on top of the special pension. She could have also claimed a part of this type of benefit which had been awarded to D.J. ’ s adult son (see paragraph 15 below).

11 . On 20 November 2012 the Warsaw Regional Administrative Court dismissed the applicant ’ s appeal against the above-mentioned decision.

12 . On 7 August 2013 the Supreme Administrative Court dismissed the applicant ’ s cassation appeal against the above-mentioned judgment.

13 . The courts held that the 2010 resolution adopted by the Council of Ministers had intentionally restricted the circle of people eligible for the special pension. The Prime Minister, who enjoyed discretion to decide who would receive pension under the special scheme, had rightly acted with restrain. The applicant did not fulfil the requirements for the pension because she had not been married to the victim and also because her financial situation had not deteriorated significantly after her partner ’ s death.

14 . In light of the fact that the Prime Minister ’ s decisions in respect of the special pension are not public, it is unknown whether in respect of the widows and widowers of other plane crash victims, the analysis of their financial situation had also been undertaken to assess their eligibility of the special pension.

15 . It is unknown whether the special pension has been awarded to D.J. ’ s wife. D.J. ’ s adult son obtained a one-off financial aid in the amount of EUR 10,000.

COMPLAINT

The applicant complains, invoking Articles 7 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, that the law on the pensions scheme for the families of the victims of the 2010 plane crash, discriminated against her on the grounds of her status of an unmarried partner of the victim of the 2010 plane crash.

QUESTIONS TO THE PARTIES

1. Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention , in conjunction with Articles 8 of the Convention and Article 1 of Protocol No. 1 to the Convention?

2. The Government are requested to submit a copy of the resolution no. 52/2010, which was adopted by the Council of Ministers on 12 April 2010 and which authorised the payment of special pensions to the families of the persons killed in the 2010 plane crash.