CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 15 octobre 2013

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s701081D1 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:left } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s13F94BE1 { font-family:Arial; letter-spacing:-0.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s14567F15 { margin-top:12pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s469066A6 { width:125.6pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .s5A070004 { width:213.96pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   FOURTH SECTION DECISION Application no. 967/06 Leokadia MACIEJCZYK against Poland The European Court of Human Rights (Fourth Section), sitting on 15   October 2013 as a Committee composed of:   David Thór Björgvinsson, President,   Vincent A. De Gaetano,   Krzysztof Wojtyczek, judges, and Françoise Elens-Passos, Section Registrar, Having regard to the above application lodged on 24 November 2005, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Leokadia Maciejczyk, is a Polish national, who was born in 1957 and lives in Gózd. 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 . A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant has one child, a daughter born in 1989. Prior to her application for a pension she had been employed. 1.     Proceedings concerning the grant and revocation of the EWK pension 5.     On 31 December 1993 the applicant filed an application with the Radom 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. 6.     Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist medical centre. The certificate stated that the child (born in 1989) suffered from coeliac disease and needed a gluten free-diet and was in need of the parent’s constant care. 7.     On 20 February 1994 the Radom Social Security Board (“the SSB”) issued a decision granting the applicant the right to an early-retirement pension in the net amount of 2,423,800 Polish zlotys before denomination. In 2002 the pension amounted to 555.33 Polish Zlotys (PLN). In addition, between 1   September   1992 and 30   June   1998 the applicant received a family allowance, the amount of which was not submitted by the parties. The starting date for payment of the pension was set for 3 January 1994. 8.     The applicant was employed in the Social Security Board between 21   June   1983 and 30   June   1998. As submitted by the Government, the applicant was subsequently employed between 18   January   2001 and 31   March   2004 and after that since 15   February   2006. 9.     On 5   March   2003 the SSB issued a decision by which it suspended payment of the pension to the applicant. The SBB relied firstly on the fact that the applicant was employed and, secondly, that the sickness the applicant’s daughter suffered from, did not qualify the applicant to be granted an early retirement referred to in the Cabinet’s Ordinance of 15   May 1989 on the right to early retirement of employees raising children who require permanent care ( Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki ) (“the 1989 Ordinance”). 10.     The applicant appealed against this decision. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, she alleged that the revocation of her retirement pension was contrary to the principle of protection of vested rights. 11.     On 31   July   2003 the Radom Regional Court ( Sąd Okręgowy ) amended the challenged decision and granted the applicant a right to further payments of the early retirement with effect from 1   April   2003. The court heard expert witnesses who confirmed that the applicant’s child still suffered from the sickness diagnosed in 1994 and that it indeed was not on the respective list. It found however that the procedure did not allow for divesting the applicant of her retirement pension because no fresh evidence, previously unknown, had been discovered. 12.     On an unspecified date the Radom SSB appealed. 13.     On 20   October   2004 the Lublin Court of Appeal amended the challenged judgment and dismissed the applicant’s appeal against the decision of 5   March   2003. The court stressed that the applicant had been employed both on the date of granting the EWK pension (20   February   1994) and on the date on which the pension was suspended (5   March   2003) and that she did not personally take care of her daughter. The court found that the child was being taken care for by her father and his sister-in-law. 14.     The applicant lodged a cassation appeal. 15.     On 5   May   2005 the Supreme Court accepted the reasoning of the Court of Appeal and dismissed the cassation appeal. The Supreme Court’s decision was served on the applicant on 23   September   2005. 2.     The applicant’s financial situation following the suspension of the EWK pension 16.     Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the SSB. 17.     The Government submitted that the applicant had been employed between 18   January 2001 and 31   March 2004 and, subsequently, since 15   February   2006. The judgment of the Lublin Court of Appeal of 20   October   2004 confirms that the applicant had a source of income at the time when her early pension was suspended that is in March 2003 (see paragraph   13 above). 18.     The applicant confirmed that she did work at the relevant time; she argued however that no provision in the Polish legal system forbade retirement persons take up employment. B.     Relevant domestic law and practice 19.     The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of Moskal v.   Poland , no.   10373/05, §§   31 ‑ 34, 15   September 2009 and Antoni Lewandowski v.   Poland , no.   38459/03, §§   36 ‑ 43, 2   October 2012). COMPLAINTS 20.     The applicant complained under Articles 6 and 13 of the Convention and, in substance, under Article 1 of Protocol No. 1 to the Convention about the decision to suspend her right to the EWK pension. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION A.     Preliminary issues 1.     Scope of the case before the Court 21.     In the instant case the gist of the applicant’s complaints is that the decision to divest her of her early-retirement pension amounted to an unjustified deprivation of property. Consequently, the application 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.” 2.     The Government’s objections 22.     The Court notes that the Government raised several objections to the admissibility of the case. They submitted that the application was incompatible ratione materiae and ratione personae with the Convention, constituted an abuse of the right of individual application, and that the applicant had failed to exhaust domestic remedies, comply with the six ‑ month rule and, finally, had suffered no significant disadvantage. The applicant disagreed with the Government. 23.     As regards non-compliance with the six-month rule, the Court has already considered in other EWK cases that the applicants should not be penalised for having tried to file a cassation appeal with the Supreme Court in order to avoid any risk of having their case rejected by the Court for non ‑ exhaustion of domestic remedies (see, for example, Frączek-Potęga v.   Poland , no. 39430/04, § 55, 4 December 2012). Accordingly, the final decision in the case under consideration was given by the Supreme Court on 5   May   2005, served on the applicant on 23   September   2005, whereas the applicant lodged her application with the Court on 24   November   2005. That being so, the Court concludes that the applicant complied with the six ‑ month term laid down in Article 35 § 1 and the Government’s objection should therefore be dismissed. 24.     The Court further notes that it has already examined identical objections regarding abuse of the right of individual application, 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, Lewandowski , cited above, §§   45-72 and Lew v. Poland, no. 34386/04, §§ 35 ‑ 62, 4 December 2012). The Court sees no reason to depart from its previous findings. 25.     Moreover, the Court finds that it is not called upon to deal with the remaining admissibility issues as the application is in any event inadmissible for the reasons stated below. B.     Article 1 of Protocol No. 1 to the Convention 1.     The parties’ submissions 26.     The Government maintained that the application was manifestly ill ‑ founded. They submitted that the interference with the applicant’s property rights had been lawful and justified. In particular, divesting the applicant of her right to the early-retirement pension had been provided for by law and was in the public interest. There was also a reasonable relationship of proportionality between the interference and the interests pursued. They further noted that the applicant had not been required to reimburse the sum of PLN 34,295.51 already paid to her. 27.     The Government also underlined that the applicant had worked while in receipt of the EWK pension, until 30 June 1998. She continued working at the time and after the suspension of the pension. In 2003 her income amounted to some 22.41% of the official average salary in Poland and these figures rose in further years; 27.55% in 2004, 35.68% in 2005, 38.58% in 2006, 42.89% in 2007, 43.23% in 2008. Furthermore, the applicant’s husband remained constantly employed before and after the suspension of the applicant’s pension. 28.     The applicant admitted that she worked at the relevant time; however no provision of the Polish law forbade a retired person take up additional employment. She submitted that the decision to suspend her early retirement pension placed on her an excessive, disproportionate burden. 2.     The Court’s assessment 29.     The relevant general principles are set out in paragraphs 49 ‑ 52 of the Moskal judgment, cited above. The Court would nevertheless reiterate that any interference by a public authority with the peaceful enjoyment of possessions should be lawful, must be in the public interest and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see Moskal , cited above, §§ 49 and 50). It would further reiterate that, as a general principle, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence and that, consequently, as regards the reason concerning the applicant’s daughter’s state of health, it was open to them to reassess an applicant’s entitlement to a pension (see Moskal , cited above, §   73 and Iwaszkiewicz v. Poland , no. 30614/06, §§ 53 and 70, 26 July 2011). 30.     The Court finds, as it did in previous similar cases, that the decision of the SSB depriving the applicant of the right to receive the EWK pension amounted to an interference with her possessions within the meaning of Article   1 of Protocol No.   1 to the Convention and that this interference was provided for by law and pursued a legitimate aim, as required by this Article (see Moskal , cited above, §§   56 ‑ 57 and 61 ‑ 63). 31.     However, in assessing the proportionality of this interference, the Court considers that the present case differs substantially from previously examined cases in which the applicants resigned from gainful employment in order to obtain the EWK pension, the pension was their only income, and its sudden revocation placed an excessive burden on them as they were left without any resources or perspective to find a new job quickly (see, among many other examples, Moskal ; Antoni Lewandowski; Potok ; and Lew, cited above). 32.     In contrast, as a result of the suspension of the pension, the applicant in the instant case was not faced with the total and immediate loss of her only source of income as she had worked before the pension was suspended (see Rzepa v. Poland (dec.), no.   30361/04, 9   April   2013, §   34). It is true that, as the Government submitted, in the first two years of her post-pension employment she gained some 22%-27% of the official average salary in Poland and her situation might have been difficult. However the applicant was not left without any resources; she worked already when her pension was suspended and the figures concerning her income rose from 27% to 43% of the official average salary in further years (see paragraph 27 above). 33.     The principle of good governance is of particular importance and it is desirable that public authorities act with the utmost care and speediness, in particular when dealing with matters of vital importance to individuals, such as social benefits and other such rights (see Antoni Lewandowski , cited above, §   80). It is true that the authorities, in particular the courts, reviewed the applicant’s case over a relatively long period of time (approx. 2   years and 2   months). However, as already noted above, throughout these proceedings the applicant was employed. 34.     In view of the foregoing, it cannot be said that the authorities’ decisions placed on the applicant an excessive burden incompatible with Article   1 of Protocol No. 1 to the Convention (see Rzepa, cited above, § §   31 ‑ 37). 35.     It follows that the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3   (a) and   4 of the Convention. II.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 36.     The applicant also alleged violations of several other provisions of the Convention (see paragraph 20 above). However, the Court considers that any issues that may be raised by the applicant under those provisions have already been adequately addressed above. 37.     In any event, in all the previous similar cases examined to date, the Court considered that the complaints under Articles 6 and 13 of the Convention either did not require a separate examination or should be dismissed as manifestly ill-founded (see, among many other examples, Moskal §§   77 ‑ 99 and Antoni Lewandowski §§   86 ‑ 88, cited above; see also paragraphs 28-37 above). 38.     It follows that the remainder of the application must likewise be rejected under Article 35 § 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Françoise Elens-Passos   David Thór Björgvinsson   Registrar   President