JOINT PARTLY DISSENTING OPINION OF JUDGE S BRATZA, HIRVELÄ AND BIANKU

1 . The case is one of considerable importance, raising as it does an issue common to a number of applications against Poland which are currently pending before the Court. It concerns primarily the compatibility with Article 1 of Protocol No. 1 of the revocation of the grant to the applicant of an early-retirement pension (the “EWK” pension) on the grounds that her son ’ s health condition was not such as to require permanent care and that accordingly she had not been entitled to the pension at the time it was granted. To our regret, we are unable to join the majority of the Chamber in finding that the revocation of the EWK pension violated the applicant ’ s rights under the Protocol.

2 . It is not disputed by the parties, and we accept, that the decision of the Rzeszów Social Security Board of 25 June 2002 which deprived the applicant of the right to receive the EWK pension amounted to an interference with her possessions within the meaning of Article 1 of Protocol No. 1. We also agree that the revocation served a legitimate aim, namely to ensure that the public purse was not required to continue to bear the cost of providing a benefit to which the applicant had never been entitled. Where we part company with the majority of the Chamber is on the question whether the revocation was in the circumstances of the case proportionate to the legitimate aim pursued and, more particularly, whether a fair balance was preserved between the demands of the general interest of the public and the requirement of the protection of the individual ’ s fundamental rights.

3 . The factors to be weighed on the applicant ’ s side of the scale are undeniably powerful. In August 2001 the applicant lodged her application for the EWK pension in good faith and attached to it, as required, a medical certificate which was signed by a specialist on allergies and pulmonology and which certified that her son suffered from atopic bronchial asthma, various allergies and recurring sino -pulmonary infections which required his mother ’ s constant care. After examining the application, the Social Security Board granted the applicant the right to an EWK pension as from 1 August 2001 but suspended payment of the pension since the applicant was still working. Shortly thereafter, the applicant resigned from her full-time employment and a new decision was issued by the Board authorising payment of the pension from 1 September 2001. The applicant was subsequently issued with a pensioner ’ s identity card marked “valid indefinitely” and for the following 10 months continued to receive the pension without interruption. Until payment of the pension was discontinued and the decision to grant it was revoked in July 2002, the applicant had no reason to believe that she was not entitled to the pension and no reason to doubt that she would continue to receive it as long as there was no change in her child ’ s medical condition. It is clear that the loss of the EWK pension had serious financial consequences for the applicant, who appears to have had no other source of income at the time and who is likely to have faced considerable difficulty in finding new employment. It is clear, too, that the blame for what had occurred lay not with the applicant but exclusively with the Social Security authorities who had erroneously approved the grant of the pension on the grounds that her son ’ s health condition qualified the applicant to receive it.

4 . We could readily accept that, in these circumstances, it would have been disproportionate had the authorities sought to recover from the applicant the EWK pension sums which they had erroneously paid. But this was not the case. Where we differ from the majority is in their view, which is confirmed by the award of just satisfaction, that a fair balance required that the applicant should continue to be paid the pension which she had mistakenly been awarded but to which she had no legal entitlement until the date of her retirement in 2015, or at least until her son attained the age of majority in 2012. In our view, it would, on the contrary, upset any fair balance if, once having discovered their mistake, the authorities were precluded from ever redressing its effects and were required to perpetuate the error by continuing to pay the pension which had been wrongly granted. This would, as the judgment expressly recognises, not only lead to the unjust enrichment of the recipient but would have an unfair impact on other individuals contributing to the Social Security fund, in particular those who were denied benefits because they failed to meet the statutory requirements; it would also amount to sanctioning an improper allocation of scarce public resources.

5 . In this respect, the case is clearly distinguishable from that of Stretch v. the United Kingdom (No. 25543/02, judgment of 24 June 2003) in which the Court found to be a disproportionate interference with the applicant ’ s property rights a local authority ’ s refusal to permit the applicant to exercise an option to renew a lease on the expiry of the initial term, on the grounds that the original grant of the option had been ultra vi r es the local authority. The Court in that case observed that the lease agreement between the applicant and the local authority was one of a private law nature, that the local authority had received the agreed rent for the lease and that, on exercise of the option to renew, it had the possibility of negotiating an increase in the ground rent. In these circumstances, there was no ground for holding that the local authority had acted against the public interest in the way in which it had disposed of the property under its control or that any third party interests would have been prejudiced by giving effect to the renewal option and there was nothing per se objectionable in the inclusion of such a term in lease agreements. The Court further noted that there was no unjust enrichment of the applicant, who had the expectation of deriving a future return from his investment in the lease, the option to renew having been an important part of the lease for a person such as the applicant who had undertaken building obligations.

6 . The majority in the present case place emphasis on the principle of good governance in the context of property rights and criticise the authorities for an alleged failure to act in good time and in an appropriate and consistent manner once having discovered their mistake. While we accept the importance of the principle of good governance, we cannot find that the principle was breached in the present case; the review of the award of the EWK pension took place, in our view, with reasonable promptness and, once having discovered the error, the authorities acted both properly and without any undue delay.

7 . It is further argued that where, as here, a mistake has been caused by the authorities themselves without any fault of a third party, a “different proportionality approach” is called for when determining whether the burden borne by an applicant was excessive. It is unclear to us in what respect the approach to be adopted in such a case is said to differ from that in other cases. However, even accepting that a more stringent test may be required where the national authorities are responsible for the error which resulted in the original grant of the EWK pension, we do not find that the revocation of the grant imposed on the applicant an individual and excessive burden. We are confirmed in this view by four factors. In the first place, although the EWK pension awarded to the applicant was expressed to be valid indefinitely, it was not in any event a benefit which was permanent or immutable; the payment of the pension was subject to periodic review and was liable to be discontinued if, inter alia , the medical condition of the applicant ’ s child was found no longer to require permanent care. Moreover, it was as the domestic courts found liable to be discontinued where new evidence had been submitted or where relevant circumstances, which pre-existed the initial pension award but which had not been taken into consideration by the authorities, had subsequently come to light. Secondly, the decision of the Social Security Board to revoke the grant of the pension was itself subjected to careful examination at three levels of jurisdiction by the domestic courts, which examined fresh medical evidence concerning the applicant ’ s son before concluding that the applicant had been rightfully divested of the right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care. Thirdly, as noted above, despite the fact that the revocation was retrospective, the applicant was never required to repay the sums which had been mistakenly paid to her. Fourthly, when the applicant lost her entitlement to the EWK pension, she qualified for another form of pre-retirement benefit from the State, albeit one of significantly less value than the EWK pension. It is true that, for reasons which are unclear but may have been related to the fact that the applicant was concurrently pursuing proceedings in the domestic courts to challenge the revocation of the EWK pension, the proceedings to obtain the alternative pre-retirement benefits were not concluded until 25 October 2005. However, the award of these benefits was backdated to 25 October 2002, with the consequence that the applicant received a lump sum equivalent to 3 years ’ pension payments.

8 . In these circumstances, we are unable to conclude that a fair balance was not struck between the competing public and private interests or that the applicant ’ s rights under Article 1 of Protocol No. 1 were violated.

9 . As to Article 6 of the Convention, the reasons which we have relied on above serve also to answer the applicant ’ s complaint that the revocation of the decision to award the EWK pension offended against the principle of legal certainty. Thus, like the majority of the Chamber, we do not consider that the applicant ’ s complaint under that Article requires a separate examination.