Communicated on 4 February 2016

FOURTH SECTION

Application no. 49/12 Grzegorz BÄ„KOWSKI against Poland and 4 other applications (see list appended)

STATEMENT OF FACTS

The applicants are Polish nationals.

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

During various periods between 1 September 2003 and 8 March 2011 the applicants were employed as convicted persons while serving their sentences of imprisonment. For their work their received salary in the amount of half of the statutory minimum wage. The applicants were employed full-time or part-time on the basi s of labour law contracts or so ‑ called referrals ( skierowanie ) , regulated by Article 121 of the 1997 Code on Execution of Criminal Sentences, the 1997 Code.

In all cases the situation ended on 8 March 2011 when the law was amended and the convicted persons started receiving for their work at least full minimum wage.

The applicants lodged civil proceedings for payment against the State Treasury in which they sought to be reimbursed the difference between full and half wage for the period of their employment prior to 8 March 2011. The domestic courts dismissed all actions lodged by the applicants reiterating that it had not been illegal to pay the prisoners half of the minimum statutory wage. The courts found no basis to apply the judgment of the Constitutional Court before the date on which the unconstitutional provision lost its binding force, which happened only on 9 March 2011. The domestic court thus concluded that the salary received by the applicant for his work had been calculated in accordance with the law. The appeals were also all dismissed on similar basis.

B. Relevant domestic law and practice

1. The 1997 Code

Article 123 (2) of the 1997 Code of Execution of Criminal Sentences (the 1997 Code, Kodeks Karny Wykonawczy ), in its version wh ich had been in force between 1 September 2003 and 8 March 2011, stated that the remuneration of a convicted person employed full-time should be not less than half of a minimum wage in Poland. The persons employed for less than full ‑ time would have their income calculated proportionally to the number of hours worked, taking at least half of the minimum wage as a base.

On 8 March 2011 the amendment to the 1997 Code entered into force (Law of 3 February 2011). The new Article 123 (2) stipulates that the convicted persons shall receive at least minimum statutory wage.

2. The Supreme Court ’ s practice

In its judgment of 20 April 2006 the Supreme Court (IV CSK 38/06) stated as follows, in so far as relevant:

“By delaying the date on which a provision loses its force the Constitutional Court indicates its position regarding prospective effects of its judgment. To think otherwise would challenge the meaning of such postponing. It means that, until the period after which the provision will lose its binding force elapses, the courts and other State authorities shall apply this provision. In consequence in such circumstances there is no possibility to re-open the proceedings.”

3. The Constitutional Court ’ s judgment

On 23 February 2010 the Constitutional Court gave a judgment in a case originating from a preliminary question referred to it by a domestic court (P 20/09). The Constitutional Court held that Article 132 (2) of the 1997 Code was incompatible with Articles 32 and 65 (4) taken in conjunction with Article 2 of the Constitution. As regards the merits of the case the Constitutional Court considered that the Constitution in principle does not forbid differentiating the basic minimum wage provided that it is justified and fulfils other conditions. The Constitutional Court considered that the prisoners ’ work should not be perceived as punishment and that they also have right to just remuneration. The court dismissed as irrelevant the arguments of the Sejm and the Prosecutor General that their work was a part of re-socialisation process. The Constitutional Court decided that all employees, regardless of the legal basis of their employment, should be equally treated with regard to the salary to which they are entitled. Therefore both a person employed at liber ty and the one employed after a conviction shall be entitled to a salary regulated by similar rules concerning minimum wage. The reason for difference in treatment, namely whether a worker was a convicted person or not, breached the constitutional principle of equality. The Constitutional Court noted that there exist other ways to lower the costs of work of a convicted person, like tax incentives, which do not require reducing their minimum wage.

The Constitutional Court examined the potential consequences of its judgment. It decided, on the basis of Article 190 § 3 of the Constitution, to postpone the date on which the impugned Article 123 (2) of the 1997 Code would lose its binding force, for twelve months after the official publication of the judgment on 8 March 2010. This period would give time necessary for employers to adapt to the new rules and to the legislator to modify the system so to compensate the employers for the rise of minimum wage and to incite them to employ the convicted persons. The impugned provision was to lose force on 9 March 2011.

COMPLAINT

All applicants complain under various Articles of the Convention that they received half of their minimum wage for their work carried out while serving their prison sentences. They complain that such regulation was discriminatory and breached their property rights.

QUESTIONS TO THE PARTIES

All applicants complain about being paid half of the minimum statutory wage in the period between 1 September 2003 and 8 March 2011. In this connection (see notice of the applications in Malecki v Poland no. 38189/12, and 16 other applications):

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the meani ng of Article 1 of Protocol No. 1 to the Convention?

Have the applicants been deprived of their possessions in the public interest, and in accordance with the conditions provided for by law and in accordance with the principles of international law , within the meaning of Article 1 of Protocol No. 1 to the Convention?

3. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of being employed as convicted persons, contrary to Article 14 of the Convention r ead in conjunction with Article 1 of Protocol No. 1 to the Convention?

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Facts

Employment periods during the imprisonment when half wage

Domestic remedies engaged in respect of the complaint about half of the minimum wage

49/12

29/11/2011

Grzegorz

BÄ„KOWSKI

10/12/1958

Nowogród Bobrzański

Served a sentence of imprisonment in Wołów Prison.

12 December 2006 – 19 March 2007 and

23 October 2008 – 19 August 2009

Full-time employmen t

A civil action against the State Treasury; dismissed by Wołów District Court (I C 44/10); the case was transferred to the Wrocław Penitentiary Court which on 16/09/2011 dismissed the claim (V Pen 1280/11)

44785/13

17/06/2013

Jarosław MATUSZNY

05/02/1984

Skoczów

Served a sentence of imprisonment in Strzelce Opolskie Prison.

3 January 2007 –

23 September 2008

A civil action against the Prison; partly rejected partly dismissed by Opole District Court (I C 1976/12) on 5 February 2013; the appeal rejected for formal reasons on 27 May 2013.

56571/13

22/08/2013

Łukasz TOMCZAK

03/12/1982

Wronki

The applicant served a sentence of imprisonment in Poznań Prison.

6 November 2006 – 30 August 2007 full-time employment

A civil action against the State Treasury lodged on 3 February 2011; on 21 September 2012 dismissed by the Poznań District Court (XII C 124/11); on 17 May 2013 the Poznań Court of Appeal dismissed the appeal (II S 92/12).

31865/14

12/06/2014

Piotr WIECZOREK

20/11/1974

Wronki

The applicant served a sentence of imprisonment in the Wronki Prison.

23 October 2009- 31 January 2011.

A civil action against the State Treasury; on 12 April 2013 dismissed by the Szamotuły Dis trict Court (I C 881/12); on 31 January 2014 the Poznań Court of Appeal dismissed the appeal (II Ca 1057/13).

56847/14

06/08/2014

Rafał SAGAN

22/11/1975

Pi Å‚a

The applicant served a sentence of imprisonment in the Potulice Prison.

20 October 2008 – 25 March 2010 and, 10 May – 1 August 2010

A civil action against the State Treasury; on 24 May 2013 dismissed by the Szubin District Court (V C 149/13); on 3 April 2014 the Bydgoszcz Court of Appeal dismissed the appeal (II Ca 670/13).

APPENDIX