Communicated on 14 February 2020 Published on 2 March 2020

FIRST SECTION

Application no. 13266/16 Jadwiga Barbara SZWEBLIK against Poland lodged on 4 March 2016

STATEMENT OF FACTS

The applicant, Ms Jadwiga Barbara Szweblik , is a Polish national who was born in 1951 and lives in Goleszów .

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

The applicant is a psychologist with forty-five years of professional experience working for different public hospitals.

On 19 February 1992 the applicant informed the Rybnik Social Security Board ( Zakład Ubezpieczeń Społecznych , “the ZUS”) that she no longer worked for her former employer and had instead registered for business activity. The applicant was advised by an employee of the ZUS that she herself should start paying contributions as an entrepreneur. Between 1 March 1992 and 3 December 1998 the applicant paid monthly social security and health insurance contributions as an entrepreneur.

According to the statement issued by the ZUS on 14 July 2016 during the said period the applicant had paid 15,334 Polish zlotys (PLN) in contributions as an entrepreneur. That sum included social security and health insurance contributions.

On 23 March 2012 the ZUS issued a decision by which it declared that between 1 March 1992 and 31 December 1998 the applicant had not been insured with the ZUS as an entrepreneur. It established that until 31 July 2001 the applicant had continued working half-time for another employer (a public hospital). Therefore, she should have been insured only as an employee. In consequence the ZUS excluded the applicant from social security cover as an entrepreneur during this period.

The applicant appealed against that decision.

On 28 June 2012 the Bielsko – Biała Regional Court ( Sąd Okręgowy ) dismissed her appeal. The court reiterated that as the applicant had been insured as an employee she had no obligation to pay social security contributions as an entrepreneur. The applicant appealed further.

On 23 May 2013 the Katowice Court of Appeal ( SÄ…d Apelacyjny ) dismissed her appeal. That court declared that the ZUS had the right to verify the insurance title at any time, even after a significant period of time. It also mentioned that the ZUS had been unable to establish whether the applicant had been employed, because prior to 1 January 1999 there had been no individual accounts for insured persons.

On 18 July 2013 the ZUS, relying on a five-year time-bar, refused to return the applicant the contributions which she had paid from 1 March 1992 to 31 December 1998. The applicant appealed.

On 20 November 2013 the Bielsko – Biała Regional Court dismissed her appeal. The applicant appealed further.

On 21 August 2015 the Katowice Court of Appeal dismissed her appeal. The court established that between 1992 and 1998 the applicant had been unduly paying social security contributions. The authorities were correct in assessing that the reimbursement of those contributions had been time-barred. Since the domestic law changed in this respect the court applied the five-year time limit to the first period and the ten-year time-limit to the period in 1998. In any event the claim had been time-barred. The court also established that the applicant ’ s pension rights had not been affected as the authorities had taken into account this period both for the calculation of the period of insurance and as regards the capital.

On 2 October 20115 the judgment was sent to the applicant.

Until 31 December 1998 the issue of insurance of entrepreneurs was governed by the Act of 18 December 1976 on social insurance of persons who conduct a business activity and of their families ( Ustawa z dnia 18 grudnia 1976 r. o ubezpieczeniu społecznym osób prowadzących działalność gospodarczą oraz ich rodzin ).

Section 2 reads, in so far as relevant:

“1. Persons engaged in the activities referred to in Article 1 shall not be insured [as entrepreneurs] if:

1) at the same time they are employed for not less than half of the working time of the profession in question (...)”.

Section 83a (1) of the Law of 13 October 1998 on the system of social insurance ( Ustawa z dnia 13 października 1998 r. o systemie ubezpieczeń społecznych , “the 1998 Act”) reads in so far as relevant:

“The right or obligation established by a final decision of the Board shall be re-assessed upon application of the person concerned or, ex officio, if, after the decision has become final, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right or obligation are discovered.”

Section 35 (5) of the Act of 25 November 1986 on organisation and financing of the social security insurance ( Ustawa z dnia 25 listopada 1986 r. o organizacji i finansowaniu ubezpieczeń społecznych ) reads in so far as relevant:

“If more than five years have elapsed since the date of payment of undue social security contributions, no refund may be claimed.”

COMPLAINT

The applicant complains under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that she was deprived of property, because the unduly paid social security contributions were not returned to her. The applicant complains that the limitation period should not have been applied and that excluding her from social security cover between 1 March 1992 and 3 December 1998 as an entrepreneur had lowered the amount of her retirement pension.

QUESTIONS TO THE PARTIES

1. Has the applicant been deprived of her possessions in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? In particular, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?

2. Were the contributions paid by the applicant as an entrepreneur in the period between 1 March 1992 and 31 December 1998 taken into account in calculation of her retirement pension as regards the number of annuities and the height of the capital?