Communicated on 22 June 2015

FOURTH SECTION

Application no. 38189/12 Jan MALECKI against Poland and 16 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 basis of labour law contracts or so-called referrals ( sk i erowanie , 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.

Some applicants complained to the penitentiary authorities about being paid half of the minimum wage. They received replies from the Regional Inspectorate of Prison Service that their remuneration was calculated in accordance with the law as it stood at the material time. Therefore their complaints were considered manifestly ill-founded.

Other 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. In two cases the court s relied on the position of the Supreme Court expressed in its judgment of 20 April 2006 in that if the Constitutional Court allows for a unconstitutional provision to remain in force for a period of time after the judgment, such situation does not give rise to claim compensation for the period of time prior to the date on which the provision lost force ( Dobrowolsk i 45651/11 and Wasyluk , 23299/14) . The domestic court thus concluded that the salary received by the applicant for his work had been calculated in accordance with the law. The appeal s were also all dismissed on similar basis.

B. Relevant domestic law a nd practice

1. The 1997 Code

Article 123 (2) of the 1997 Code of Execution of Criminal Sentences (the 1997 Code, Kodeks Ka rny Wykonawczy ), in its version which 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.

The same Law amended Article 125 of the 1997 Code introducing a new deduction of 25% of the salary of the convicted person for a Fund aiming at professional motivation of convicted persons and development of enterprises within prisons ( Fundusz Aktywizacji Zawodowej Skazanych oraz Rozwoju Przywięziennych Zakładów Pracy ). Since 8 March 2011 this deduction adds to the existing one for Post-Penitentiary Aid Fund ( Fundusz Pomocy Postpenitencjarnej ). The deduction for the latter Fund was decreased from 20 % prior to 8 March 2011 to 10 % after that date.

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 liberty 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.

COMPLAINTS

1. 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.

2. Dobrowolski ( 45651/11 ); Szubrych (74228/12); Pacholski (81145/12):

The applicants complain that after the amendment to the 1997 Code entered into force their salary is again reduced as a new deduction of 25 % was introduced.

COMMON QUESTIONS for ALL APPLIcations

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:

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

In particular, should the constitutional complaint and the complaint with the Regional Inspectorate of Prison Service be considered as an effective remedy withi n the meaning of this provision?

Ha ve the applicant s complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?

2. Has there been an interference with the applicant s ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention ?

Have the applicant s been deprived of their possessions in the public interest, an d 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. Ha ve the applicant s 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 re ad in conjunction with Article 1 of Protocol No. 1 to the Convention ?

CASE SPECIFIC QUESTIONS

The applicants in cases Dobrowolski (45651/11), Pacholski (81145/12) and Szubrych (74228/12) additionally complain about deduction of 25 % introduced by the amendment to the Code of Execution of Criminal Sentences which entered into force on 8 March 2011. In this respect:

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

(b) 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 ?

APPENDIX

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

Other complaints to be communicated

401/11

07/12/2010

Wiesł aw SZABELKOWSKI

01/04/1971

Wolow

Served five-year sentence of imprisonment in Wołó w Prison.

26 June 2009 (or April 2009) until 8 March 2011.

Full-time employment

Complaint with the Ministry of Justice lodged on 18 October 2010. On 25 November 2010 the Wrocł aw Regional Inspectorate of Prison Service dismissed the complaint.

None

3741/11

11/01/2011

S ł awomir PÓŁKOŚNIK

13/12/1966

Milicz

The applicant served a sentence of imprisonment in Oleśnica and Wołó w Prison.

1. 11/2006 – 07/2007 full-time employment

2. 18/03/2008 – 08/03/2011; part-time employment.

Complaint with the Ministry of Justice lodged on 29/11/2010 and on 07/12/2010

On 11 February 2011 the Wrocł aw Regional Inspectorate of Prison Service dismissed the complaints.

None

45651/11

28/06/2011

Krzysztof DOBROWOLSKI

15/04/1974

Rogalinek

The applicant was s erving a prison sentence in Koziegł owy prison.

After 2011 still employed.

1. 15/10/2009 – 31/12/2010 full time employment

2. 01/01/2011 - 8/03/2011

(half time)

2. 9/03/2011 – 23/06/2013 (Minimum wage)

Two civil actions against the Sta te Treasury; dismissed by Poznań District Court on 12 December 2013 and 25 February 2014 . Upheld on appeal by the Poznań Regional Court on 16 September 2014 and 19 September 2014

Under Article 14 about new deductions introduced on 8 March 2011. Complained about them to the Ombudsman (reply on 1 April 2011).

68650/11

11/10/2011

Dariusz RUDNICKI

20/07/1964

Sieradz

Since 2000 the applicant serves sentence of 25 years ’ imprisonment.

February 2005 – 8 March 2011

The applicant lodged a civil claim for compensation. Howe ver his motion for exemption fro m the court ’ s fees and for legal aid was dismissed by the Sieradz Regional Court on 8 March 2011 (upheld by the Lodz Court of Appeal on 7 April 2011). The courts found his claim for payment manifestly ill-founded.

NoneNo.

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

Other complaints to be communicated

78490/11

18/10/2011

SÅ‚ awomir PAWLAK

06/06/1973

ElblÄ… g

From 12 July 2007 until 14 January 2009 employed part-time.

From 8 December 2005 until 14 January 2009 almost continuously for part time (except 2 months of full time).

The applicant lodged a civil claim for compensation.

On 22 June 2010 his motion for legal aid lawyer was dismissed.

On 13 September 2010 the ElblÄ… g District Court found itself incompetent to deal with this case and transferred it to a penitentiary court. The case was further transferred between courts.

Outcome of the proceedings unknown.

None

33379/12

29/05/2012

Adam BŁACH

21/11/1969

Głogów

The ap plicant was employed in the Wołó w Detention Centre.

21/05/2009 – 08/03/2011

Complaint with the Mi nistry of Justice.

On 20 March 2012 the Wroclaw Regional Inspectorate of Prison Service dismissed the complaint.

None

38189/12

08/05/2012

Jan MALECKI

11/06/1959

Zambr ó w

The applicant was employed in the Czerwony Bó r Detention Centre.

1. 13/07/2007 – 18/12/2007

(7/8 of the time)

2. 15/04/2008 – 13/11/2009

(6/8 of the time)

The applicant lodged a civil claim for compensation. His claim was dismis sed on 9 June 2011 by the Zambró w Regional Court. On 14 December 2011 t he Łomż a Regional Court dismissed the applicant ’ s appeal.

None

47847/12

23/07/2012

Krzysztof IMIOŁEK

20/04/1978

Wołó w

The ap plicant was employed in the Wołó w Detention Centre.

From January 2004 until 8 March 2011 (mostly part-time employment, for one year full time).

He lodged a complaint with the prison authorities. His complaint was dismissed on 5 July 2012 by the Regional Inspectorate of the Prison Service.

None

56382/12

28/08/2012

Krzysztof JASIŃSKI

13/03/1981

Głogó w

The app licant was employed in the Gł ogó w Prison.

05/08/2008-05/12/2008

23/07/2009-17/12/2010

The applicant lodged a complaint which was dismis sed on 28 June 2012 by the Wrocł aw Regional Inspectorate of Prison Service.

NoneNo.

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

Other complaints to be communicated

60722/12

10/09/2012

Grzegorz WRÓŻ

21/05/1979

Wołó w

The appli cant was employed in the Racib órz and Wrocł aw Prison.

23 February 2005 to 4 January 2007 (full-time employment)

19 July 2007 to 19 August 2008 (part-time).

The applicant complained with the Ministry of Justice. His complaints were dismissed by the Regional Inspectorate of Prison Service on 26 September and 15 October 2012.

None

66342/12

21/09/2012

Mirosł aw WOJCIECHOWSKI

22/02/1968

Wronki

The applicant worked in several prisons.

7 Jan 2008 to 8 March 2011

The applicant lodged a civil claim for compensation against the State Treasury. On 30 December 2011 the Szamotu Å‚ y District Court dismissed his claim. On 24 July 2012 the Pozna Å„ Regional Court dismissed his appeal.

None

67079/12

01/10/2012

Zbigniew MARTYNIAK

02/11/1972

Żagań

The ap plicant was employed in the Wołó w Prison.

March 2005 to March 2010

The applicant worked in prison for 9 months and 15 days (from 12 December 2006 to 23 July 2007 and from 14 January to 20 March 2008

He instituted civil proceedings for the protection of his personal rights and he raised the above issue in his action before the domestic court.

On 2 December 2011 the Wrocł aw Regional Court dismissed the applicant ’ s claim.

On 26 April 2012 the Wrocł aw Court of Appeal dismissed his appeal.

None

74228/12

06/11/2012

Mariusz Andrzej SZUBRYCH

02/11/1957

Poznań

He serve d prison sentence in the Koziegł owy Prison

June 2006 and December 2007- March 2011 and September 2012

NoneAdditional deductions of 10 % and 25% introduced after 2011 – complaint about it dismissed by the Ombudsman on 20 April 2012.

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

Other complaints to be communicated

81145/12

13/12/2012

Jan PACHOLSKI

27/07/1962

Wołów

The applicant was employed when detained in Woł ów Prison,

11 July 2005 to 15 November 2007,

14 February until 21 May 2008

27 January 2010 to 8 March 2011

The applicant complained with the Regional Inspectorate of the Prison Service raising the issue that he should have been paid at least a minimum salary.

On 31 October 2012 the authority dismissed his complaint as unfounded.

Additional deductions of 10 % and 25% introduced after 2011 – complaint about it dismissed on 4 July 2014 by the Regional Inspectorate of the Prison Service .

29795/13

25/04/2013

Tomasz SUSZYNA

25/08/1978

Wrocław

The applicant wa s employed in the Herby and Wołó w Prison.

March 2005 to March 2010

The applicant brought a civil action against the State Treasury. On 14 June 2012 the Racib ó rz District Court dismissed the cla im and on 9 October 2012 the Czę stochowa Regional Court finally dismissed his appeal.

None

61693/13

09/09/2013

Andrzej TOMICZ

10/01/1971

Strzelce Opolskie

The applicant was employed in Racibó rz Prison.

27 July 2006 – 10 March 2009

The applicant brought a civil action against the State Treasury. The Raciborz District Court on 9 October 2012 dismissed the applicant ’ s claim.

On 13 March 2013 the Gliwice Regional Court upheld the above judgment.

None

23299/14

13/03/2014

Andrzej WASYLUK

09/08/1968

Nysa

The applicant worked in Strzelce Opolskie Prison

22 November 1996 to 11 September 2008

The applicant brought a civil action for compensation against the State Treasury. On 11 March the Warsaw Regional Court dismissed his claim.

On 23 October 2013 the Warsaw Court of Appeal dismissed the applicant ’ s appeal.

On 17 January 2014 the applicant was informed by the legal aid lawyer about the lack of grounds for cassation appeal.

None