Published on 15 May 2023

FIRST SECTION

Application no. 35894/22 Wanda GIERAT against Poland lodged on 9 July 2022 communicated on 25 April 2023

SUBJECT MATTER OF THE CASE

The present application concerns the reduction of the applicant’s survivor’s pension ( renta rodzinna ) and raise similar issues to Cichopek and Others v. Poland ((dec.), nos. 15189/10 and 1,627 others, 14 May 2013) and Bieliński v. Poland (no. 48762/19, 21 July 2022).

In 2017, following the entry into force of the amendments of the Law of 18 February 1994 on old-age pensions of functionaries of the police, the Internal Security Agency, the Intelligence Agency, the Military Counter ‑ Intelligence Service, the Military Intelligence Service, the Central Anti ‑ Corruption Bureau, the Border Guard, the Government Protection Bureau, the State Fire Service, the Prison Service and their families ( ustawa o zaopatrzeniu emerytalnym funkcjonariuszy Policji, Agencji Bezpieczeństwa Wewnętrznego, Agencji Wywiadu, Służby Kontrwywiadu Wojskowego, Służby Wywiadu Wojskowego, Centralnego Biura Antykorupcyjnego, Straży Granicznej, Biura Ochrony Rządu, Państwowej Straży Pożarnej i Służby Więziennej oraz ich rodzin – “the 1994 Act”) an administrative decision was issued, recalculating the applicant’s survivor’s pension which she had been receiving since 2003, following her husband’s death. The recalculation led to a significant decrease of the pension. The decision was immediately enforceable. Following the applicant’s appeal, the first instance court decided to restore the applicant’s pension in the original amount. However, the second instance court accepted the decrease and dismissed the applicant’s appeal holding that in the years 1950 ‑ 1956 the applicant’s husband had served a totalitarian regime.

The applicant complains under Article 1 of Protocol No. 1 to the Convention that the decrease of her pension constitutes a disproportionate interference with her acquired rights which, in turn, amounts to a violation of her right to peaceful enjoyment of her possessions.

The applicant further complains that the second instance court examined her case in a composition of three judges appointed in the procedure established by the Law of 8 December 2017 Amending the Act of the National Council of the Judiciary, which gave rise to a violation of her right to an “independent and impartial tribunal established by law”, in breach of Article 6 § 1 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the decrease of the applicant’s pension amounted to an interference with the peaceful enjoyment of her possessions, within the meaning of Article 1 of Protocol No. 1? If so:

(i) was the interference in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? And,

(ii) did the interference complained of put an excessive burden on the applicant?

2. Was the Wrocław Court of Appeal which dealt with the applicant’s appeal against the first instance judgment on 15 March 2022 (case no. III A Ua 513/21) an “independent and impartial tribunal established by law” as required by Article 6 § 1 of the Convention (see Advance Pharma sp. z o.o v. Poland , no. 1469/20, 3 February 2022, and Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 205-290, 1 December 2020)?