Communicated on 16 May 2017

FOURTH SECTION

Application no. 41178 /12 J a n RA Ł against Poland lodged on 1 9 June 2012

STATEMENT OF FACTS

1 . The applicant, Mr Jan Rał , is a Polish national who was born in 194 6 and lives in Opole .

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 1968 and 1983.

4 . On 3 January 1984 he was granted a military retirement pension and, as he had been found to be partly unfit for work, a military disability pension. The payment of the military retirement pension was suspended and, since then, the applicant has been receiving the military disability pension as the benefit that was more advantageous to him.

5 . After the termination of his military service, in 1984 he undertook employment outside of the military and remained in work until 2010. Throughout this period he paid compulsory contributions into the Social Insurance Fund.

6 . On 20 July 2010 the Social Security Board ( Zakład Ubezpieczeń Społecznych ) issued a decision by virtue of which the applicant was granted the right to a retirement pension from the Social Insurance Fund. The Social Security Board calculated the applicant ’ s retirement pension on the basis of 26 years, 6 months and 14 days of contributory and non-contributory periods. The board did not take into account the period of the applicant ’ s military service, referring to the fact that the applicant had been authorised to receive a military retirement pension and was receiving a military disability pension under this head. By virtue of the same decision, the payment of the applicant ’ s pension from the Social Insurance Fund was suspended because he had chosen to be paid the military disability pension.

7 . The applicant filed an appeal against the Social Security Board ’ s decision of 20 July 2010, arguing that he should be paid both benefits – the military disability pension and the retirement pension from the Social Insurance Fund – because he had fulfilled the conditions laid down in the relevant provisions.

8 . On 17 November 2010 the Opole Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s appeal. The court found that it was beyond dispute that the applicant had a right to a military disability pension and a military retirement pension, as well as a retirement pension from the Social Insurance Fund. Thus, the applicant could choose to be paid one of these three benefits. Referring to section 95 of the Law of 17 December 1998 on pension benefits from the Social Insurance Fund ( ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych – hereinafter “the 1998 Law”) and section 7 of 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” ) (see “ Relevant domestic law and practice” , below) the court concluded that the challenged decision suspending the payment of the retirement pension had been made in accordance with the relevant provisions of law and that the applicant could not be paid more than one social benefit.

9 . On 11 December 2010 the applicant appealed against the first-instance judgment. He complained, inter alia , that his military service and employment had lasted a total of 41 years and that he should be paid social benefits calculated on the basis of that entire period. The principle that no person should, in general, be receiving more than one social benefit (“the single benefit rule”) meant, in his view, that either his 15 years of military service or 26 years of employment would unfairly be disregarded.

10 . On 5 April 2011 the Wrocław Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant ’ s appeal, finding that the challenged judgment had been in accordance with the relevant provisions of law.

11 . On 20 May 2011 the applicant ’ s lawyer lodged a cassation appeal with the Supreme Court, arguing that the courts had misinterpreted the provisions concerning the single benefit rule and that the applicant should be paid both benefits – a military disability pension and a retirement pension from the Social Insurance Fund.

12 . On 8 May 2012 the Supreme Court dismissed the applicant ’ s cassation appeal as ill-founded. The Court endorsed the Regional Court ’ s and the Court of Appeal ’ s interpretation of the relevant provisions of law, confirming that the applicant was not authorised to be paid more than one retirement or disability benefit. It further noted that the single benefit rule was not new and that it had been introduced into the retirement system in 1982 and subsequently reiterated in the 1998 Law.

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 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 and/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 special 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 1993 Law . As a rule, a military old-age 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:

a . a military old-age pension;

b . a military 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 6 of the Convention, alleging that he had been deprived of his right to a fair hearing and that the courts had misinterpreted the relevant law and had not taken into account important facts and jurisprudence. However, his de facto complaint was that he had to choose between the retirement benefits to which he had acquired rights and that he was not being paid both benefits – the military disability pension and the retirement pension from the Social Insurance Fund.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the m eaning of Article 1 of Protocol 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 retirement pension from the Social Insurance Fund was suspended after he had exercised his right to choose to be paid a military disability pension.

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 Protocol 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)?