CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                           AS TO THE ADMISSIBILITY OF   Application No. 23935/94                Application No. 25034/94 by Wojciech JANKOWSKI                   by U. S.- W. against Poland                          against Poland         The European Commission of Human Rights sitting in private on 16 October 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 14 December 1994 by Wojciech JANKOWSKI against Poland and registered on 21 April 1994 under file No. 23935/94 and to the application introduced on 30 April 1994 by U. S.-W. against Poland and registered on 30 August 1994 under file No. 25034/94;         Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   FACTS         The facts of the case, as submitted by the applicants, may be summarised as follows:     Application 23935/94         The applicant, a Polish citizen born in 1946, is a retired dancer residing in Warsaw.         In 1973 the applicant concluded a contract with the Social Insurance authorities, providing for payment of additional contributions towards the social security scheme with a view to obtaining an increase by 15 per cent in his future retirement pension.         In April 1991 the applicant retired.   The Social Insurance authorities calculated his retirement pension on the basis of his income and additional contributions paid since 1973 until the date of retirement.   The pension was calculated on the assumption that the applicant's income on retirement was equivalent to 364.18 per cent of the average salary.   The decision of the Social Insurance provided for the applicant's entitlement to a pension of 4,194,200 zlotys per month.         On 15 December 1991 the Social Insurance authorities issued a new decision, in accordance with the amendment to the Retirement Pensions Act of 17 October 1991, according to which as from 1 January 1992 the applicant was entitled to 1,929,800 zlotys per month.   This pension was calculated on the assumption that the applicant's income on retirement had not exceeded a maximum level of 250 per cent of an average salary. The decision also deprived the applicant of the 15 per cent supplement to the pension, due to him by virtue of his additional contributions.         The applicant appealed against this decision to the Warsaw Regional Court (S*d Wojewódzki).   He complained that his retirement pension had been reduced and recalculated according to generally applicable rules, regardless of the fact that he had been paying additional voluntary contributions for many years.   He indicated that the decision violated his constitutional right to property.         On 14 April 1992 the Warsaw Regional Court dismissed the applicant's appeal.   The Court found that the decision was in conformity with the Retirement Pensions Act as amended on 17 October 1991.         The applicant filed an appeal with the Warsaw Court of Appeal (S*d Apelacyjny).   He indicated that from 1974 until 1991 he had paid additional voluntary contributions to the Social Insurance fund in order to secure his entitlement to a higher pension.   This increased pension was intended to compensate for the fact that the applicant, due to the nature of his profession, could not work for long periods and thereby gain entitlement to a higher pension.   He complained that the impugned decision violated his property rights as his retirement pension did not in any way correspond to the increased contributions which he had paid.         On 6 October 1992 the Warsaw Court of Appeal dismissed the applicant's appeal as the calculation of the applicant's retirement pension was in conformity with the Retirement Pensions Act as amended on 17 October 1991.   Application 25034/94         The applicant, a Polish citizen born in 1934, is a retired opera singer, residing in Warsaw.         In 1973 the applicant concluded a contract with the Social Insurance authorities, providing for payment of additional contributions towards the social security scheme with a view to obtaining an increase by 15 per cent in her future retirement pension.         In February 1990 the applicant retired.   The Social Insurance authorities calculated her retirement pension on the basis of her income and additional contributions paid since 1973 until the date of retirement.   The pension was calculated on the assumption that the applicant's income on retirement was equivalent to 364.18 per cent of the average salary.   The decision of the Social Insurance authorities provided for the applicant's entitlement to a pension of 4,528,434 zlotys.         On 15 December 1991 the Social Insurance authorities issued a new decision, in accordance with the Retirement Pensions Act as amended on 17 October 1991, according to which as from 1 January 1992 the applicant was entitled to a pension of 2,176,000 zlotys.   This pension was calculated on the assumption that the applicant's income at the time of retirement was equal to the maximum level of 250 per cent of the average salary.   The decision also deprived the applicant of the 15 per cent supplement to the pension, due to her by virtue of her additional contributions.         The applicant appealed against this decision to the Warsaw Regional Court.   She complained that her retirement pension was reduced and calculated according to the generally applicable rules, regardless of the fact that she had paid additional contributions for seventeen years. Thus, she had been deprived of her entitlement to the additional 15 per cent supplement to the pension, which amounted to a deprivation of her property rights.   She indicated that her additional contributions had been paid to her own account with the Social Insurance authorities, stressing that the sums accumulated on this account constituted her personal investment and were therefore her property.         On 24 April 1992 the Warsaw Regional Court dismissed the applicant's appeal.   The Court found that the decision was in conformity with the Retirement Pensions Act as amended on 17 October 1991.         The applicant filed an appeal with the Warsaw Court of Appeal.   She submitted that from 1974 until 1990 she had paid voluntary additional contributions to the Social Security in order to secure entitlement to a higher pension. She complained that the impugned decision breached her property rights as her retirement pension did not in any way correspond to the increased contributions.         On 8 January 1993 the Warsaw Court of Appeal dismissed the applicant's appeal as the calculation of the applicant's retirement pension was in conformity with the Retirement Pensions Act as amended on 17 October 1991.   COMPLAINTS         The applicants complain under Article 6 para. 1 of the Convention that the outcome of the proceedings concerning their retirement pensions was unfair.         The applicants complain under Article 1 of Protocol No. 1 that they were deprived of their property rights in that their retirement pensions, calculated in accordance with the Retirement Pensions Act, do not in any way reflect the increased contributions which they paid to the Social Insurance fund for seventeen years.   They contend that this is a continuing situation of deprivation of their property rights.   THE LAW   1.     The Commission finds it necessary to join the applications under Rule 35 of its Rules of Procedure.   2.     The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that the outcome of the proceedings concerning their retirement pensions was unfair.         The Commission recalls that Poland recognised the competence of the Commission to receive individual applications "from any person, non- governmental organisation or group of individuals claiming to be a victim of a violation of the rights recognised in the Convention through any act, decision or event occurring after 30 April 1993".   The Commission is not competent to examine complaints relating to violations of the Convention by acts, decisions or events that have occurred prior to this date.         In the present case, the court proceedings concerning the applicant's complaints against the decisions of the Social Insurance authorities of 15 December 1991 came to an end before 1 May 1993.   It follows that this part of the applications is outside the competence ratione temporis of the Commission and therefore incompatible with the provisions of the Convention within the meaning of Article 27 para. 2.   3. The applicants further complain under Article 1 of Protocol No. 1 (P1-1) that they were deprived of their property rights.   They contend that the reduction of their pensions created a continuing situation of deprivation of their property rights.         Article 1 of Protocol No. 1 (P1-1) provides:         "Every natural or legal person is entitled to the peaceful enjoyment       of his possessions.   No one shall be deprived of his possessions       except in the public interest and subject to the conditions provided       for by law and by the general principles of international law.         The preceding provisions shall not, however, in any way impair the       right of a State to enforce such laws as it deems necessary to       control the use of property in accordance with the general interest       or to secure the payment of taxes or other contributions or       penalties."         It is true that, according to the Convention organs' case-law, the making of contributions to a pension fund may, in certain circumstances, create a property right in a portion of such fund and such right may be affected by the manner in which the fund is distributed (No. 4130/69, Yearbook 14, pp. 224 and 240 et seq.; No. 5849/72, Dec. 16.12.74, D.R. 1, p. 46; No. 9776/82, Dec. 3.10.83, D.R. 34, p. 153; No. 12264/86, Dec. 13.7.88, D.R. 57, p. 131).         The Commission nevertheless recalls that Poland ratified Protocol No. 1 (P1) to the Convention on 10 October 1994.   In accordance with the generally recognised principles of international law, the Commission is not competent to examine complaints relating to alleged violations of the Protocol by acts, decisions or events that have occurred prior to this date.         The Commission observes that in the present case the amendment to the Retirement Pensions Act, which reduced the applicants' entitlement to the supplementary benefits acquired on the basis of their additional voluntary contributions, was passed on 17 October 1991.   The decisions of the Social Insurance recalculating the applicants' pensions in accordance with this amendment were taken on 15 December 1991.   The final court judgments which upheld these decisions as being in conformity with the law were pronounced on 6 October 1992 and on 8 January 1993.   These acts all occurred prior to 10 October 1994, i.e. the ratification by Poland of Protocol No. 1 (P1) to the Convention.   Insofar as the applicants complain that these acts created a continuing situation of deprivation of their property rights, the Commission recalls that deprivation of property rights is in principle an instantaneous act and does not produce a continuing situation of "deprivation of property" (No. 7742/76, Dec. 4.7.78, D.R. 14, p. 146; No. 26078/94, Dec. 17.5.95, unpublished).         It follows that this complaint is also outside the competence ratione temporis of the Commission and therefore incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).         For these reasons, the Commission, unanimously,         1.    DECIDES TO JOIN THE APPLICATIONS,         2.    DECLARES THE APPLICATIONS INADMISSIBLE.   Secretary to the Commission             President of the Commission          (H.C. KRÜGER)                          (S. TRECHSEL)