Communicated on 16 May 2017

FOURTH SECTION

Application no. 39247/12 Tadeusz PERSJANOW against Poland lodged on 11 June 2012

STATEMENT OF FACTS

1. The applicant, Mr Tadeusz Persjanow , is a Polish national who was born in 1945 and lives in Józefos ł aw . He was represented before the Court by Ms Świątkiewicz - Pałosz , a lawyer practising in Warsaw.

A. The circumstances of the case

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

3. The applicant served in the army between 1962 and 1983.

4. On 7 September 1984 he was granted a military pension.

5 . Between 7 September 1984 and 1 May 2010 he received the military pension referred to above.

6 . At the same time, between 1984 and 2010 he was employed outside the military and paid compulsory contributions into the Social Insurance Fund.

7 . On 29 March 2010 the Social Security Board ( Zak ł ad Ubezpiecze ń Spo ł ecznych ) issued a decision by virtue of which the applicant was granted the right to a retirement pension from the Social Insurance Fund. When calculating the applicant ’ s retirement pension, the Social Security Board took into consideration a contributory period of 25 years and 3 months and a non-contributory period of 3 months. The board did not take into account the period of the applicant ’ s military service between 1 October 1962 and 3 August 1983, referring to the fact that the applicant had been receiving a military pension.

8 . On 19 April 2010, upon the applicant ’ s request of 12 April 2010, the payment of his military retirement pension was suspended with effect from 30 April 2010.

9. The applicant appealed against the decision of the Social Security Board of 29 March 2010, arguing that the Social Security Board had not taken the period of his military service had into account when calculating his retirement pension from the Social Insurance Fund. He also submitted that the payment of his military pension had been suspended, so there should be no obstacle to his being granted a civil retirement pension calculated on the basis of the whole period of his employment (that is to say, including his military service).

10. On 2 June 2011 the Warsaw Regional Court ( S ą d Okr ę gowy ) dismissed his appeal. The court found, referring to the relevant provisions of the domestic law, that the periods of military service could only have been taken into account for the purpose of calculating the applicant ’ s civil retirement pension if he had not acquired the right to a military pension or had lost his right to a military pension. The court held that this was not so in the case of the applicant; he had been granted the right to a military pension, the payment of which was suspended because he had chosen to be paid the pension acquired under the civil scheme.

11. The applicant appealed against the first-instance judgment. He raised, among other things, the alleged violation of basic rights and the principle of equality of all citizens and their equal treatment by the administrative authorities.

12. On 10 January 2012 the Warsaw Court of Appeal ( S ą d Apelacyjny ) dismissed the applicant ’ s appeal, finding that the challenged judgment had been given in accordance with the relevant provisions of law. The Court did not share the applicant ’ s view regarding the allegedly unequal treatment of “military” and “civil” retirement persons and stressed in this respect that the main difference between the military and civil retirement schemes lay in the non-contributory character of the military system (as opposed to the civil system, in which contributions are compulsory) and the possibility to begin receiving the military pension after 15 years of service, notwithstanding the age of the person concerned. The court further pointed out that between the years 1984 and 2010 the applicant, while still employed in a non-military capacity, had been receiving a military pension.

B. Relevant domestic law and practice

1. Retirement pensions under the general social security scheme

13. The rules for the determination of retirement pensions under the general social security scheme are laid down in the Law of 17 December 1998 on pension benefits from the Social Insurance Fund ( ustawa o emeryturach i rentach z Funduszu UbezpieczeÅ„ SpoÅ‚ecznych ‑ hereinafter “the 1998 Law”).

14. The general social security scheme operates on the basis of two schemes (hereinafter “the old scheme” and “the new scheme”).

15 . Under the old scheme, which applies to persons born before 1 January 1949 and persons born after 31 December 1948 but before 1 January 1969 who opted for this system, the right to a retirement pension is generally acquired by women aged 60 with at least a twenty-year contributory and/or non-contributory period and men aged 65 years with at least a twenty-five contributory an d/or non-contributory period. A retirement pension amounts to 24% of the so-called “base amount” ( kwota bazowa ) (i.e. 100% of the average salary in Poland in the previous calendar year, reduced by compulsory social insurance contributions deducted from the salary) + 1.3% of the basis of assessment for each contributory year + 0.7% of the basis of assessment for each non-contributory year. The basis of assessment is – to put it simply – calculated according to the average salary (reduced by social insurance contributions) received by the person concerned over ten years selected from the last twenty years of employment (or twenty years chosen by the person concerned).

16. The new scheme comprises the so-called “three pillars” ( trzy filary ) .

17. The first pillar is managed by the Social Security Board, which is a public institution; the second and the third pillars are managed by private institutions. The third pillar manages supplementary private pension plans that are based on voluntary contributions; it is not relevant to the present case.

18. In respect of the first and second pillars, social insurance contributions are compulsory and the scheme applies to persons born after 31 December 1948. The right to a retirement pension is acquired by persons who have reached the statutory retirement age (between 60 to 67 years for women and between 65 years and five months to 67 years for men). The level of a retirement pension is calculated as the equivalent of the total amount of pension contributions after indexation collected since 31 December 1998, plus what is known as “initial capital” (contributions collected before 1 January 1999) after indexation, divided by the average life expectancy expressed in months for a person whose age is the same as the retirement age of the person concerned. On 1 February 2014 the Act of 6 December 2013 amending rules as regards payment of retirement pension from the second pillar came into force. According to the new provisions membership in the second pillar is no longer mandatory; currently an insured person may but is not under an obligation to save his or her contributions in the second pillar; if no decision is made within the specified time limit, the contributions of a person concerned are paid only to the mandatory first pillar.

19 . Section 2(2) of the 1998 Law contains a special provision, which grants the right to social benefits from the general social-security scheme to soldiers who cannot receive benefits from the military retirement scheme, and provides as follows :

“The benefits referred to in the present act shall also be paid to professional soldiers ... if they do not fulfil the conditions for receiving (or if they have lost the right to receive) the benefits referred to in the provisions concerning retirement pensions for professional soldiers and members of the families of deceased soldiers.”

20. Section 95(1) of the 1998 Law provides as follows :

“In the case that one person is authorised to receive several of the benefits referred to in the present Act, the person concerned shall be paid one benefit – either the most advantageous or that of his own choice.”

21 . The previous Act of 14 December 1982 on retirement benefits for employees and their families ( Ustawa o zaopatrzeniu emerytalnym pracowników i ich rodzin ), which entered into force on 1 January 1993, contained in Article 69 a similar principle - that only one retirement pension could be paid, even if the person concerned was eligible to receive more than one retirement pension or a retirement and a disability pension.

2. Retirement pensions for soldiers and their families

22. The rules for the determination of retirement pensions for persons serving in the military are laid down in the Law of 10 December 1993 on social benefits for professional soldiers and their families ( ustawa o zaopatrzeniu emerytalnym żołnierzy zawodowych oraz ich rodzin – hereinafter “the 1993 Law” ) As a rule, a m ilitary pension is granted to a soldier after 15 years of military service .

23 . Section 1(1) of the above Act provides, in so far as relevant, as follows:

“Soldiers released from professional military service have the right to receive, on the basis laid down in the present Act, retirement benefits from the state budget, depending on the length of their service ...”

24. Section 2 of this Act provides, in so far as relevant, as follows:

“ the retirement benefits [referred to in the previous section] shall comprise:

1. pecuniary benefits:

a . a military pension;

b . a disability pension.”

25. Section 7 of the above Act provides, in so far as relevant, as follows:

“In the case of an overlap of a right to retirement or disability pension referred to in the present Act or to a retirement or disability pension ... referred to in other provisions, the most advantageous benefit or the benefit chosen by the person concerned shall be paid, unless special provisions provide otherwise.”

COMPLAINTS

26. The applicant complained under Article 14 of the Convention that he is being discriminated against, as a former member of the military, because under domestic law – even though he is entitled to both a retirement pension from the Social Insurance Fund and a military pension – he can only be paid one of these benefits. He further complained that if he were to choose to be paid a military pension, the period of his employment would not be taken into account when determining the level of such a pension and that if he were to choose to be paid the retirement pension under the social-security scheme, the period of his military service would not be taken into account when determining the level of his benefit.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Pr otocol No. 1? Have the applicant ’ s property rights under Article 1 of Protocol No. 1 been respected?

Reference is made to the fact that the payment of the applicant ’ s military pension was suspended after he had exercised his right to choose to be paid a retirement pension from the Social Insurance Fund.

2. Has the applicant suffered discrimination in the enjoyment of his Convention rights contrary to Article 14 of the Convention read in conjunction with Article 1 of Protoc ol No. 1 to the Convention (see Koua Poirrez v. France , no. 40892/98, ECHR 2003 ‑ X , and Stec and Others v. the United Kingdom ( dec. ) [GC], n os. 65731/01 and 65900/01, ECHR 2006 ‑ VI)?