CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 février 2014

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POLAND   (Application no. 6210/05)             JUDGMENT         STRASBOURG   11 February 2014             This judgment is final but it may be subject to editorial revision. In the case of Hajduk v. Poland, The European Court of Human Rights (Fourth Section), sitting as a   Committee composed of:   Ledi Bianku, President,   Paul Mahoney,   Krzysztof Wojtyczek, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 21 January 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 6210/05) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Krzysztof Hajduk (“the   applicant”), on 15 December 2004. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by   Ms   J.   Chrzanowska, of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that the ex officio reopening of the social security proceedings concerning his right to an early-retirement pension, which resulted in the quashing of the final decision granting him a right to a pension, was in breach of Article 1 of Protocol No. 1 to the Convention. 4.     On 20 May 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1956 and lives in Borki Nizińskie. 6.     The applicant is married with two children. Prior to his early retirement he had been employed for 23 years and had paid his social security contributions to the State. A.     Proceedings concerning the grant and the revocation of an EWK pension 7.     On 18   December   2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8.     Along with his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist doctor on 14   December   2001. The certificate stated that the child (born in 1990) suffered from, among other things, urinary tract infection and chronic headaches and that she was in need of her parent’s constant care. 9.     On 20   December   2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an early ‑ retirement pension. 10.     The Social Security Board initially suspended the payment of the pension until the end of the year 2001 due to the fact that the applicant was still working on the date of the decision. 11.     On 31   December   2001 the applicant’s employment contract expired. It had been terminated by the employer with three-month notice for reasons attributable to the employer’s financial situation. 12.     Consequently, on 1   January   2002 the Rzeszów Social Security Board started to pay the retirement pension in the net amount of 1,324.57 Polish zlotys (PLN) (approximately 370 euros (EUR)). 13.     The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and he continued to receive his pension without interruption until the date of the revocation of the right. 14.     On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 13   September   2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 15.     On 19   September   2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. 16.     By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early ‑ retirement pension under the scheme provided for by the 1989 Ordinance. 17.     The applicant appealed against the respective decisions divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights. 18.     On 25   September   2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. 19.     The applicant appealed against the first-instance judgment. 20.     On 12   October   2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he had not satisfied the requirement of necessary permanent care. 21.     A professional lawyer prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf. 22.     On 22   June   2004 the Supreme Court rejected the cassation appeal (odrzucił) on the ground that the lawyer had not properly described the circumstances which would justify the examination of the cassation appeal (okolicznośći uzasadniające rozpoznanie kasacji) . B.     The applicant’s financial situation 23.     Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to an early-retirement pension. 24.     Throughout the whole period of receiving the EWK pension the applicant did not work. 25.     More than one year after the pension had been revoked, the applicant started working on the basis on a mandate contract. He worked for three months from 20   October until 22   December   2003. 26.     In 2004 the applicant remained unemployed for ten months. On 25   October   2004 he started to work on a permanent basis. 27.     The Government submitted that the applicant’s gross annual income was PLN   1,100 (approx. EUR   262) in 2003, PLN   2,056.67 (approx.   EUR   456) in 2004, PLN   11,464.50 (approx. EUR   2,870) in 2005, PLN   12,480 (approx. EUR   3,285) in 2006, PLN   13,080 (approx. EUR   3,535) in 2007, PLN 14,111 (approx. EUR   3,813) in 2008, PLN   17,880 (approx.   EUR   4,250) in 2009. 28.     The Government also submitted that the applicant had owned a 4.59   ha farm and had received some direct payments from the Agency of Modernisation and Restructuring of Agriculture in the amount of PLN   1,948.43 (approx. EUR   430) in 2004, PLN 1,934.50 (approx. EUR   480) in 2005, 2,327.58 (approx. EUR   612) in 2006, PLN 2,161.67 (approx. EUR   584) in 2007, PLN 3,554.03 (approx.   EUR   960) in 2008 and PLN   6,592.63 (approx. EUR   1,570) in 2009. They further submitted that “there were no doubts that the applicant’s farm had constituted a source of income”; they failed however to submit any evidence to support this statement. The applicant submitted that the income from his farm had been “minimal”. 29.     The Government also maintained that the applicant’s wife had a gainful employment. In the years 2003-2007 she earned between 20 and 39% of the average gross salary in Poland. 30.     The applicant has a son who also worked at the relevant time. He earned 5.25% of the average gross salary in Poland in 2002, 3.31% in 2003, 13.3% in 2004, 34.02% in 2005, 33.80% in 2007, 88.86% in 2008, 96.10% in 2009. In 2006 he apparently did not work. 31.     Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension when he turns sixty ‑ five in 2021. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Social security system 32.     The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland , no.   10373/05, §§ 31-34, 15 September 2009. B.     Cassation appeal 33.     A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second-instance court. A party had to be represented by an advocate or a legal adviser. 34.     Article 393 1 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 35.     Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. According to Article 393 15 if the cassation appeal was well-founded the Supreme Court could also amend the impugned judgment and adjudicate on the merits. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 36.     The applicant complained that divesting him, in the circumstances of the case, of his acquired right to an early-retirement pension amounted to an unjustified deprivation of property. This complaint falls to be examined under Article 1 of Protocol No. 1 to the Convention, which reads as follows: “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.” A.     Admissibility 1.     The Government’s preliminary objections (a)     Abuse of the right of an individual application (i)     The Government 37.     The Government submitted that the present application constituted an abuse of the right of individual application under Article 35 § 3 of the Convention in that the applicant had misrepresented to the Court his current social security status and the financial situation of his family. 38.     In particular, the Government noted that the applicant had informed the Court that after the revocation of his EWK pension his family and he had been left without any means to live. In fact, the source of income of the applicant’s family, both when the applicant had been in receipt of his EWK pension and after its revocation, had been the salary of the applicant’s wife. 39.     The Government further argued that the applicant had misled the Court in representing himself as a person who had wished to stay at home to take care of his daughter. In reality, the applicant had had a full-time job before the time he was granted the EWK pension and at the time when the pension was granted his employment contract was already about to expire due to the difficult financial situation of his employer. In the Government’s view, the applicant had sought early retirement not because he wished to take care of his child at home but because he wished to maintain a source of income. (ii)     The applicant 40.     The applicant submitted that his application had been originally based on Article   6 of the Convention and that, from this point of view, his wife’s salary had no significance for revocation of his retirement pension. He further noted that he had lodged the application himself, without the assistance of a professional lawyer, and that he had had submitted information which was relevant according to his best knowledge. He also argued that the application had been lodged only on his behalf and therefore the facts concerning the members of his family seemed irrelevant. (iii)     The Court 41.     The Court considers that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see the Akdivar and Others v. Turkey judgment of 16   September 1996, Reports of Judgments and Decisions 1996-IV, p. 1206, §§ 53–54; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April 2000; Varbanov v.   Bulgaria , no. 31365/96, § 36, ECHR 2000-X; or Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004). 42.     The Court notes that in the present case the gist of the Government’s arguments does not actually concern “untrue facts” allegedly adduced by the applicant before the Court. Rather, their objection is based on their own perception of the applicant’s possible intentions behind his decision to take advantage of the EWK early-retirement pension scheme and/or on their assessment of his and his family’s overall financial situation after the revocation of the pension. It has not been disputed that the applicant did not work while in receipt of his EWK pension and only resumed employment after his pension had been withdrawn. 43.     The Government’s preliminary objection should therefore be dismissed. (b)     Non-compliance with the six-month rule 44.     The Government submitted that the applicant had failed to respect the six-month time-limit. They argued that the Supreme Court’s decision rejecting the applicant’s cassation appeal had been served on the applicant’s lawyer on 26   July   2004 and the present application – according to the information on the application form - was lodged with the Court on 22 April 2005, that is more than nine months after the final decision had been served on the applicant’s lawyer. 45.     The applicant made no comments as regards the alleged non ‑ compliance with the six-month rule. 46.     The Court notes that indeed the Supreme Court’s decision was served on the applicant’s lawyer on 26   July   2004. However, the applicant’s first letter in which he raised the substance of his complaints was lodged with the Court on 15   December   2004. It follows that the six-month rule was respected and therefore the Government’s preliminary objection should be dismissed. (c)     Non-exhaustion of domestic remedies (i)     The Government 47.     The Government argued that the applicant had not exhausted the domestic remedies available to him, as required by Article 35 § 1 of the Convention. 48.     They submitted that the applicant did not lodge a cassation appeal against the Rzeszów Court of Appeal’s judgment of 12   February   2004 in compliance with procedural requirements. As a result, his cassation appeal was rejected on the ground that the circumstances which would justify the examination of the cassation appeal had been insufficiently described. 49.     The Government argued that the cassation appeal should be considered an effective and available remedy for the EWK cases. They referred to several examples of domestic case-law. In particular, they pointed to a case in which a cassation appeal had been allowed by the Supreme Court which had remitted it to the Court of Appeal. Afterwards the applicant’s appeals against the Social Security Board’s decision had again been rejected at two instances and, finally, the Supreme Court had refused to entertain the second cassation appeal lodged in this case. The Government did not indicate the grounds for quashing the judgment by the Supreme Court when examining the cassation appeal for the first time. 50.     In view of the foregoing, the Government invited the Court to reject the application for non-exhaustion of domestic remedies, pursuant to Article   35 § 1 of the Convention. (ii)     The applicant 51.     The applicant submitted that he had exhausted all effective domestic remedies because, although the cassation appeal lodged by his lawyer had been rejected, even if it had been lodged properly, it would not have had any prospects of success. (iii)     The Court 52.     The Court reiterates that the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention requires that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, § 65). 53.     In so far as the Government argued that the applicant’s cassation appeal had not been lodged in compliance with procedural requirements, the Court notes at the outset that in the operative part of the decision of 22   June 2004 the Supreme Court indeed rejected the cassation appeal lodged by the applicant’s lawyer. The ground which was relied on by the Supreme Court to justify the decision in question was of a formal character, namely the failure of the applicant’s lawyer to give the grounds which would justify the examination of his client’s cassation appeal. The Court notes further that the reasons behind the Supreme Court’s decision were exactly the same as reasons relied on by the same court in other case examined by the Strasbourg Court namely in Antoni Lewandowski v.   Poland , no. 38459/03, §   25, 2 October 2012, where the Supreme Court refused to entertain the applicant’s cassation appeal. Therefore the Court sees no reason to depart from the reasoning adopted in the case of Antoni Lewandowski where the Court found that the applicant’s procedural mistake did not have any material bearing on the effectiveness of his cassation appeal. As noted above, most cassation appeals which had been lodged by applicants with similar cases were considered by the Supreme Court as not deserving substantive examination. Accordingly, the prospects of success of the applicant’s cassation appeal, even if it had been lodged properly, were very little and, therefore, not sufficient for the purposes of Article 35 § 1 of the Convention (see Antoni Lewandowski , cited above, §§   62–66). (d)     Further preliminary objections 54.     In their additional observations on the case, the Government also submitted that the applicant should have made an application to the Constitutional Court, challenging the compatibility of the relevant social security provisions with the Constitution. They further argued that the applicant did not suffer significant disadvantage. 55.     The Court has already examined identical objections regarding non ‑ exhaustion as regards the applicant’s failure to lodge a constitutional complaint, and no significant disadvantage, and dismissed them, in the follow ‑ up cases to Moskal (see, for instance, Antoni Lewandowski , cited above, §§   54–72, Potok v.   Poland , no.   18683/04, §§   36–44, and Lew v.   Poland , no.   34386/04, §§   56–62, 4   December 2012). It sees no reason to depart from its previous findings. 2.     Conclusion on admissibility 56.     The Court also notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant 57.     The applicant submitted that divesting him, in the circumstances of the case, of his acquired right to an early-retirement pension had amounted to an unjustified deprivation of property. (b)     The Government 58.     The Government claimed that the interference with the applicant’s property rights had been lawful and justified. In particular, divesting the applicant of his right to the early-retirement pension had been provided for by law and was in the general interest. There was also a reasonable relationship of proportionality between the interference and the interests pursued. 2.     The Court’s assessment (a)     General principles 59.     The relevant general principles are set out in the Moskal judgment, cited above, paragraphs 49-52. The Court would nevertheless reiterate that any interference by a public authority with the peaceful enjoyment of possessions should be lawful and must pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Moskal , cited above, §§ 49 and 50). (b)     Application of the above principles to the present case (i)     Whether there has been an interference with the applicant’s possessions 60.     The parties agreed that the decisions of the Rzeszów Social Security Board of 19   September   2002, subsequently validated by two court instances (the regional court and the court of appeal), which deprived the applicant of the right to receive the EWK pension, amounted to an interference with his possessions within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court sees no reason to hold otherwise. (ii)     Lawfulness of the interference and legitimate aim 61.     As in the Moskal case the Court considers that this interference was provided for by law and pursued a legitimate aim, as required by Article 1 of Protocol No. 1 to the Convention (see Moskal , cited above, §§ 56, 57 and 61 ‑ 63 and also Iwaszkiewicz v. Poland , no. 30614/06, §§ 47, 48, 26 July 2011). (iii)     Proportionality 62.     In the instant case, a property right was generated by the favourable evaluation of the applicant’s dossier attached to the application for a pension, which was lodged in good faith, and by the Social Security Board’s recognition of the right (see paragraphs 7-12 above). Before being invalidated the decision of 20   December   2001 had undoubtedly produced effects for the applicant. 63.     It must be stressed that the delay with which the authorities reviewed the applicant’s dossier was relatively long. The decision of 20   December   2001 was left in force for nine months before the authorities became aware of their error. On the other hand, as soon as the error was discovered the decision to discontinue the payment of the benefit was issued relatively quickly and with immediate effect (see paragraphs 15-16 above). Even though the applicant had an opportunity to challenge the Social Security Board’s decision of 19   September   2002 in judicial review proceedings, his right to the pension was eventually determined by the courts only a year and a half later and during that time he was not in receipt of any welfare benefit (see paragraphs 24-26 above). 64.     In examining the conformity of these events with the Convention, the Court reiterates the particular importance of the principle of good governance. It requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see Beyeler v. Italy [GC], no.   33202/96, § 120, ECHR 2000 ‑ I; Öneryıldız v. Turkey [GC], no.   48939/99, § 128, ECHR 2004 ‑ XII; Megadat.com S.r.l. v. Moldova , no.   21151/04, § 72, 8 April 2008; and Rysovskyy v. Ukraine , no. 29979/04, § 71, 20 October 2011). It is desirable that public authorities act with the utmost care, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other such rights. In the present case, the Court considers that having discovered their mistake, the authorities failed in their duty to act speedily and in an appropriate and consistent manner (see Moskal , cited above, § 72). 65.     Moreover, in the Court’s opinion, the fact that the State did not ask the applicant to return the pension which had been unduly paid (see   paragraph 23 above) did not mitigate sufficiently the consequences for the applicant flowing from the interference in his case. As a result of the impugned measure, the applicant was faced, without any transitional period enabling him to adjust to the new situation, with the total loss of his early ‑ retirement pension, which constituted his only source of income at that time. Moreover, the Court is aware of the potential risk that, in view of his age and the economic reality in the country, particularly in the undeveloped Podkarpacki region, the applicant might have had considerable difficulty in securing new employment. Indeed, after the revocation of his pension the applicant remained unemployed. After more than a year following the revocation of his pension he worked for three months on the basis of a mandate contract. Subsequently, he remained unemployed for more than ten months and it took him more than three years after finding a paid job to earn the equivalent of the amount of his former EWK pension, that is, approximately EUR 350 net per month (see paragraph 27 above). 66.     The Government submitted that the applicant’s wife had been continuously employed. However, the Court considers that this fact is not decisive for the matter at hand, namely whether the revocation of the EWK pension placed an excessive burden on the applicant as an individual in his own right irrespective of third party financial support. 67.     The Government further maintained that the applicant’s farm had with no doubts constituted a source of income. However, they failed to submit any evidence that after the revocation of the EWK pension he indeed derived any income from the farm. The applicant submitted that the income generated by the farm was minimal (see paragraph 28 above). Moreover, the farm clearly did not constitute his main source of income, since for over twenty-three years he had been employed outside the farm, in a non-agricultural enterprise (see paragraph 6 above and Frączek-Potęga v.   Poland , no. 39430/04, §   71, 4 December 2012). As regards the direct payments from the Agency of Modernisation and Restructuring of Agriculture, it is to be noted that they were paid as of 2004, about two years after the revocation of the EWK pension and originally in very modest amounts (see paragraph 28 above). Therefore the Court considers that they could not sufficiently mitigate the consequences of the revocation of the applicant’s EWK pension. 68.     In view of the above considerations, the Court does not see any reason to depart from its ruling in the leading case concerning EWK pensions, Moskal v. Poland , and finds that in the instant case a fair balance has not been struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden placed on the applicant was excessive. 69.     It follows that there has been a violation of Article 1 of Protocol No.   1 to the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 70.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 71.     The applicant claimed EUR 50,000 without specifying whether he meant pecuniary or non-pecuniary damage. 72.     The Government submitted that the applicant’s claims were groundless and undeserved. 73.     The Court finds that the applicant was deprived of his income in connection with the violation found and must take into account the fact that he undoubtedly suffered some pecuniary and non-pecuniary damage (see Moskal , cited above, § 105 with a further reference). Making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 5,500 to cover all heads of damage. B.     Costs and expenses 74.     The applicant did not make any claim in respect of costs and expenses. C.     Default interest 75.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;   3.     Holds (a) that the respondent State is to pay the applicant, within three months, the amount of EUR 5,500 (five thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicant; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Ledi Bianku   Deputy Registrar   President