Published on 23 October 2023

FIRST SECTION

Application no. 9786/23 Daniel ZAŁUSKI against Poland lodged on 16 February 2023 communicated on 3 October 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s access to a court regarding his claim for health-related early retirement ( stan spoczynku ).

Since an accident in 2017 the applicant, a public prosecutor, has been unfit for work, as confirmed by occupational physicians in 2018, 2019 and 2021. He has remained on sick leave since 13 September 2017.

The applicant’s superior launched proceedings for his early retirement on the above grounds thrice, in 2018, 2019 and 2021. Each time, the competent medical examiners (other than occupational physicians) found that the applicant was not “permanently incapable of performing the duties of a prosecutor due to illness or loss of strength”.

The applicant alleges that, despite a legal obligation to do so, the Prosecutor General has never issued a decision refusing the applications for early retirement which would be subject to judicial review. He further submits that the only official reaction to the above-mentioned attempts was a letter from the director of human resources at the State Prosecutor’s Office addressed to the applicant’s superior on 12 February 2019, stating that the medical examiners’ opinion ruled out the possibility of further proceedings.

On 15 December 2021 the applicant himself applied for retirement but submits that he never received any response.

While on sick leave, the applicant was initially in receipt of 80% of his nominal salary during the first year and 50% thereafter. He submits that, when retired, he would receive 75% of his nominal salary.

The applicant complains, under Article 6 § 1 of the Convention, of being deprived of access to a court due to the lack of a decision regarding the applications for his retirement.

QUESTIONS TO THE PARTIES

1. Is Article 6 § 1 of the Convention under its civil head applicable to the applicant’s situation (see, mutatis mutandis, Kövesi v. Romania , no. 3594/19, §§ 124 and 156, 5 May 2020, and Grzęda v. Poland [GC], no. 43572/18, §§ 257-329 15 March 2022)?

2. In the affirmative, did the applicant have access to a court for the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention (see Kristiansen and Tyvik As v. Norway , no. 25498/08, § 57, 2 May 2013)?