CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 juin 1996

.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. 28616/95                       by Szczepan STYRANOWSKI                       against Poland         The European Commission of Human Rights (Second Chamber) sitting in private on 27 June 1996, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 24 July 1995 by Szczepan STYRANOWSKI against Poland and registered on 21 September 1995 under file No. 28616/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Polish citizen born in 1923, is a retired judge residing in Olsztyn.         The facts of the case, as submitted by the applicant, may be summarised as follows:         In May 1991 the applicant retired.   The Social Insurance authorities calculated his retirement pension on the basis of his contributions at the level of about 45 per cent of his salary, in accordance with the relevant provisions of the Retirement Pensions Act of 1972. The applicant's pension was calculated on the basis of his actual salary upon retirement, which was equivalent to 314 per cent of an average salary.         On 1 December 1991 the Social Insurance authorities in Olsztyn issued a new decision, in accordance with the amendment of the Retirement Pensions Act of 17 October 1991, reducing the applicant's retirement pension by 1.075,600 zlotys.   This pension was calculated on the assumption, introduced by that amendment, that the applicant's income upon retirement had not exceeded a maximum level of 250 per cent of an average salary, regardless of his actual salary at that moment.         On 17 December 1991 the applicant appealed against this decision to the Olsztyn Regional Court - Labour and Social Insurance Division (S*d Wojewódzki - S*d Pracy i Ubezpieczen Spolecznych).   He submitted that the 250 per cent ceiling introduced by the October 1991 amendment deprived him of a part of his retirement pension.         On 17 December 1991 the applicant also filed a compensation claim against the Social Insurance with the Olsztyn District Court (S*d Rejonowy).   He complained that his retirement pension had been recalculated and reduced in accordance with generally applicable rules, i.e. disregarding the fact that his actual salary upon retirement had been equivalent to 314 per cent of an average salary.   He submitted that the Social Insurance, in accepting the law which had imposed a ceiling of 250 per cent of an average salary as the highest basis on which a retirement pension could be calculated, had failed to respect its obligations towards the applicant.   These obligations originated from the applicant's payment of contributions to the social security retirement pension scheme for forty-four years.   No legal provisions throughout this period provided for any ceiling such as the one introduced by the October 1991 Act.   Thus the action of the Social Insurance had given rise to a liability towards the applicant based on tort.         On 25 May 1992 the Warsaw Court of Appeal - Labour and Social Insurance Division (S*d Apelacyjny - S*d Pracy i Ubezpieczen Spolecznych) complied with the request submitted by all the Olsztyn Regional Court (S*d Wojewódzki) judges to have the applicant's appeal against the Social Insurance decision of 1 December 1991 examined by another court in view of the fact that the applicant had been their superior for many years.   The case was accordingly transferred to the Warsaw Regional Court - Labour and Social Insurance Division.   This Court held a hearing on 8 September 1992 and dismissed the applicant's appeal against the decision of 1 December 1991, considering that the impugned decision was in conformity with the relevant provisions of the Retirement Pensions Act as amended by the October 1991 Act.         Subsequently on 9 February 1993 the Social Insurance authorities issued a new decision concerning the applicant's retirement pension on the basis of certain new documents indicating that the applicant's salary upon his retirement had in fact been higher than the amount which had served as basis of the December 1991 decision.   The applicant appealed against this decision, complaining again that the basis on which to recalculate his pension should not have been limited to 250 per cent of the average salary as provided for by the relevant legal provisions.   On 14 May 1993 the Warsaw Regional Court - Labour and Social Insurance Division allowed the applicant's appeal as regards the period until 1 January 1992 and dismissed it insofar as it related to the period after that date, i.e. after the entry into force of the October 1991 Act.   The Court considered that the 250 coefficient had been provided for in the relevant provisions of the October 1991 Act applicable after this date and that in applying these provisions to the applicant's case the Social Insurance had been acting in accordance with the law.         On 20 May 1992 the Warsaw Court of Appeal complied with the request submitted by all the Olsztyn Regional Court judges to have the compensation case examined by another court as regards any decisions to be taken by the appellate court.   The Court decided that in view of the fact that the applicant had been a Deputy President of the Olsztyn Regional Court, the appeal proceedings in the case should be transferred to the Ostrol*ka Regional Court.         On 26 June 1992 the Warsaw Court of Appeal complied with the request submitted by all the Olsztyn District Court judges to have the compensation case examined by another court and decided that in view of the fact that the applicant had been a Deputy President of the Olsztyn Regional Court, the case should be transferred to the Szczytno District Court.         On 29 September 1992 the Ostrol*ka Regional Court, at the request of the judges of the Szczytno District Court, decided that the case should be examined in the first instance by the Przasnysz District Court.         On 17 November 1992 the applicant informed the Przasnysz District Court that he maintained his claim and requested that a certain witness examined be heard.   The Przasnysz Court requested the Olsztyn District Court to hear this witness.         The date of a hearing was fixed for 30 December 1992.   The applicant requested that this hearing be adjourned.   The Olsztyn District Court fixed a new hearing for 14 January 1993 and heard the witness requested by the applicant on that date.         On 17 September 1993 the applicant complained to the Przasnysz District Court about the length of the compensation proceedings and requested that the date of the next hearing be fixed.   He also requested that the former Prime Minister who had been in office until June 1993 be heard as a witness to support the applicant's claim that in the past the social security contributions had been used by the State for other purposes than paying social insurance benefits.         Apparently the next hearing was fixed for 25 January 1994.   On 21 January 1994 the applicant informed the Przasnysz Court that he would be unable to attend the hearing at which his attendance was not obligatory.   He maintained his claim and referred to the Constitutional Tribunal's judgment of 11 February 1992 in which the Tribunal had stated that the October 1991 amendment to the Retirement Pensions Act was incompatible with the Constitution.         Apparently the next hearing was fixed for 23 September 1994.   On 16 September 1994 the applicant informed the Przasnysz Court that he would be unable to attend the hearing at which his attendance was not obligatory.   He maintained his claim and requested again that the former Prime Minister be heard, referring to his letter of 17 September 1993.         On 23 September 1993 the hearing was further adjourned as the Court decided to request the Social Insurance to submit the applicant's case-file.         On 7 December 1994 the applicant complained to the Minister of Justice about the length of the proceedings and in particular about the hearings having been adjourned on numerous occasions without justification.         In reply, in a letter of 10 January 1995 the President of the Ostrol*ka Regional Court informed the applicant that his case should be considered as being "privileged" since the hearings in his case had been fixed for 9 November 1992, 24 November 1992, 25 January 1993, 18 May 1993 and 23 September 1993.   In view of the fact that the Przasnysz Court was understaffed, these intervals between the hearings were sufficient to secure appropriate progress in the proceedings.   It should be noted that the applicant had failed to appear at all these hearings.   The next hearing had been set for 7 February 1995 and the case was ready for a prompt ruling.         In a letter of 11 January 1995 the applicant stressed that he had been present at the hearing of 14 January 1993 and had extensively pleaded his case.   It was true that he had not been present at other hearings, but he had requested that the case be considered in his absence.   Moreover, the court had never required his attendance at any of the hearings.   After the hearings the applicant had submitted several letters to the court in which he explained his position in the light of the progress in the case.   It had not transpired from the information which he had obtained on the phone after every hearing that any of the hearings had been adjourned because of his absence or his failure to submit documents or evidence required by the court.         In a letter to the Court of 2 February 1995 the applicant informed the Przasnysz District Court that he would be unable to attend the hearing on 7 February 1995 as his attendance was not obligatory. He maintained his claim and submitted further legal reasoning to support his claim.         On 7 February 1995 the Przasnysz District Court rejected the applicant's claim, considering that the matter was res iudicata since the issue of the ceiling to which the applicant's retirement pension was subjected had been ruled on in two sets of proceedings, terminated by the judgments of 8 September 1992 and 14 May 1993, respectively.         On 4 May 1995 the applicant filed an appeal against this decision.         On 13 July 1995 the Ostrol*ka Regional Court quashed the decision of 7 February 1995, considering that in the first proceedings the only issue which had been decided by the court was whether the calculation of the applicant's retirement benefits complied with the relevant legal provisions.   In the compensation proceedings the applicant claimed compensation for the alteration of the conditions of the contract with the Social Insurance and his claim was based on tort.   As these two claims were not identical, the second claim could not be considered as being affected by res iudicata.         Apparently in 1995 the first instance judgment was pronounced and the applicant filed an appeal against it.         On 16 January 1996 the Ostrol*ka Regional Court apparently pronounced an appellate judgment.   On 11 March and 23 April 1996 the applicant requested that the reasoned judgment be served on him. These letters remained unanswered.   COMPLAINTS         The applicant complains under Article 6 of the Convention about the length of the compensation proceedings.         The applicant further complains that the decision to reduce his retirement pension by virtue of the October 1991 Act deprived him of the rights which he had lawfully acquired and amounted to a violation of Article 6 of the Convention read together with Article 17 of the Convention.   He further submits that the decisions relating to the reduction of his retirement pension are in breach of the Convention as they amount of a violation of the lex retro non agit principle.   He further submits that the Act concerned and the decisions issued on its basis are incompatible with the Polish Constitution as the Constitutional Tribunal declared in 1992.   THE LAW   1.     The applicant complains that the decision to reduce his retirement pension by virtue of the October 1991 Act deprived him of the rights which he had lawfully acquired and amounted to a violation of Article 6 (Art. 6) of the Convention read together with Article 17 of the Convention.         The Commission has examined this complaint under Article 1 of Protocol No. 1 (P1-1) which 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 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 applicant's retirement pension, was passed on 17 October 1991.   The decisions of the Social Insurance recalculating the applicant's pension in accordance with this amendment were taken on 1 December 1991 and 9 February 1993.   The final court judgments which ruled on the applicant's appeals against these decisions were pronounced, respectively, on 8 September 1992 and 14 May 1993.   These acts all occurred prior to 10 October 1994, i.e. the date of the ratification by Poland of Protocol No. 1 to the Convention.   Insofar as the applicant's complaint might be understood as implying that these decisions created a continuing situation of deprivation of his 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 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).   2.     The applicant further complains under Article 6 (Art. 6) of the Convention about the length of the compensation proceedings.         The Commission   considers that it cannot, on the basis of the file, decide on this complaint without the observations of both parties.   The Commission therefore considers that this part of the application must be adjourned.         For these reasons, the Commission, unanimously,         DECIDES TO ADJOURN   the examination of the applicant's complaint       concerning the length of the compensation proceedings,         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber         President of the Second Chamber         (M. T. SCHOEPFER)                            (H. DANELIUS)