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 } .s701081D1 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:left } .sE0372AB5 { width:21.8pt; text-indent:0pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sBF0FE613 { width:36pt; text-indent:0pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .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 } .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 } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .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. 11867/07 Alicja RATKOWSKA 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 8 March 2007, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms   Alicja Ratkowska, is a Polish national, who was born in 1955 and lives in Mielec. Her application was lodged on 8   March   2007. 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 is married and has four children. Prior to her application for an early-retirement pension she had been employed until 31   October   1997 and paid social security contributions to the State. 1.     Proceedings concerning the grant and revocation of the EWK pension 5.     On 30   September   1997 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. 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 suffered from juvenile chronic arthritis and sinubronchitis and that she was in need of her parent’s constant care. 7.     On 8   October 1997 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an early ‑ retirement pension to the net amount of 366,09 Polish zlotys (PLN). 8.     On an unknown 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. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 9.     On 24   January   2005 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, 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. 10.     The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. 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, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 11.     On 7   April   2006 the Tarnobrzeg Regional Court ( Sąd Okręgowy ) dismissed the appeal. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989   Ordinance as she did not satisfy the requirement of necessary permanent care. 12.     The applicant further appealed against the first-instance judgment. 13.     On 6   July   2006 the Rzeszów Court of Appeal ( Sąd Apelacyjny ) dismissed the appeal. 14.     On 12   December   2006 the Supreme Court ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant. 2.     The applicant’s financial situation following the revocation of the EWK pension 15.     Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board, despite the revocation of her right to an early-retirement pension. 16.     The Government submitted that between 13   June   2001 and 9   January   2008 the applicant had worked and earned some 15% of the average salary in 2001, 61,64% in 2002, 105,94% in 2003, 86,35% in 2004, 67,35% in 2005, 62,28% in 2006 and 47,19% in 2007. Also, the applicant’s husband worked between 1999 and 2009, her son started work in 2005 and her daughter in 2006. 17.     In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation. 18.     The applicant submitted that she did not take up any employment for four years after she had been granted the early retirement pension. Later, in 2001 she started a part-time work, on the basis of a mandate contract, which she performed two or three times a week in the afternoons when other members of the family were at home. She submitted further that she had to start working because of the family’s difficult financial situation. 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 Article   6 of the Convention and, in substance, under Article   1 of Protocol No.   1 to the Convention about the decision to divest her of 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 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 penalized 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 12   December   2006, whereas the applicant lodged her application with the Court on 8   March   2007. 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 and non ‑ exhaustion as regards the applicant’s failure to lodge a constitutional complaint in the follow ‑ up cases to Moskal (see, for instance, Antoni 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   46,809.76 already paid to her. 27.     The Government also underlined that the applicant had a source of income while in receipt of the EWK pension. Between 13   June 2001 and 9   January 2008 she had worked on the basis of a mandate contract. The Government further indicated the applicant’s income for particular years (see paragraph 16 above). Furthermore, the applicant’s husband and her two children also worked after her pension had been revoked. 28.     The applicant admitted that she had worked part-time between 2001 and 2008; however she only worked in the afternoons when other members of the family could take care of her daughter. She did not contest the information of her income as submitted by the Government. She claimed that the decision to divest her of 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 the earlier cases it examined. In those cases 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 revocation 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 had a source of income before the pension was revoked (compare and contrast Antoni Lewandowski , cited above, §§   81–82). In the years of her post-pension employment she gained some 67%–62% of the official average salary in Poland (see paragraph 16 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 to be noted that the applicant’s case was examined by the courts at three instances within some 1 year and 9 months and, as already noted above, throughout these proceedings the applicant did have a source of income. 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 v.   Poland , no.   30361/04, §§   31–37, 9   April 2013). The applicant’s case is therefore distinguishable from the facts of the leading case concerning EWK pensions, Moskal v.   Poland . 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 violation Article   6 of the Convention (see paragraph 20 above). However, the Court considers that any issues that may be raised by the applicant under this provision 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 Article   6 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