CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 11 février 2014

.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 } .s13F94BE1 { font-family:Arial; letter-spacing:-0.2pt } .s13907D4E { margin-top:18pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .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 } .sE1C80691 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:14pt } .s4B4B41EE { font-family:Arial; font-size:12pt } .s16DC539 { font-family:Arial; font-size:12pt; font-style:italic } .sD0F961A5 { font-family:Arial; font-style:italic; letter-spacing:-0.2pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s13F94BE3 { font-family:Arial; letter-spacing:-0.4pt } .sA11761A5 { font-family:Arial; font-style:italic; letter-spacing:-0.4pt } .s13F94BE0 { font-family:Arial; letter-spacing:-0.3pt } .sC8FE61A5 { font-family:Arial; font-style:italic; letter-spacing:-0.3pt } .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 } .sB72D192A { margin-top:30pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s66CC5A41 { width:26.02pt; display:inline-block } .s3487DFFE { width:201.62pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s7B0354FA { width:193.28pt; display:inline-block }   FOURTH SECTION DECISION Application no. 34997/04 Janina KOPTA against Poland The European Court of Human Rights (Fourth Section), sitting on 11   February 2014 as a Committee composed of:   Ledi Bianku, President,   Paul Mahoney,   Krzysztof Wojtyczek, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 9 July 2004, Having regard to the comments 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 Janina Kopta, is a Polish national, who was born in 1958 and lives in Rzeszów. 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 daughter whom she is bringing up on her own. 1.     Proceedings concerning the grant and the revocation of an EWK pension 5.     On 31   October   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. 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 doctor. The certificate stated that the child (born in 1988) suffered from chronic asthma and that she was in need of her parent’s constant care. 7.     On 22   November   2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an early retirement pension in the amount of 701 Polish zlotys (PLN) net (approx. 180 euros (EUR)). 8.     The Social Security Board suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. 9.     On 30   April   2002 the applicant’s employment contract expired. It had been terminated by the employer due to his difficult economic situation. 10.     On an unspecified date in 2002 the Rzeszów Social Security Board had 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 7   May   2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 11.     On 22   May   2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. 12.     By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. It follows that the applicant was never paid the pension. 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. 13.     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 original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 14.     On 17   March   2003 the Rzeszów Regional Court dismissed the applicant’s appeal. 15.     The applicant appealed against the first-instance judgment. 16.     On 17   October   2003 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. 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 had not satisfied the requirement of necessary permanent care. 17.     A professional lawyer, who had been either hired by the applicant or appointed to represent her under a legal-aid scheme, prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf. 18.     On 28   April   2004 the Supreme Court refused to examine the cassation appeal. 2.     The applicant’s financial situation 19.     The applicant’s pension was originally suspended and then revoked three weeks after her employment contract had expired. It follows that she never received any payment of the granted early retirement. 20.     According to the Government’s submissions, the applicant worked on a permanent basis between 1   April   1977 and 30   April   2002. After the revocation of her pension, between 4   June and 3   December   2002, the applicant received unemployment benefit. Afterwards, until July   2007, she was registered as an unemployed person having no right to benefits. The Government also submitted that after July   2007 the applicant was not registered in the social insurance scheme. 21.     The applicant submitted an employment certificate confirming that her employment contract had expired on 30   April   2002, after the statutory notice period, due to reasons concerning the employer. 22.     She further submitted a certificate issued by the Rzeszów Local Employment Office on 27   May   2002 according to which on 4   June   2002 she was granted an employment benefit of PLN   572 (approx. EUR   124) and a further certificate issued by the same institution on 12   August   2009 confirming that she had received monthly a family benefit for her daughter in the amount of PLN   85 (approx. EUR   20) and a further monthly benefit of PLN   136.64 (approx. EUR   30) between May and August   2002. Between September   2002 and April   2004 she received only a family benefit in the amount of PLN   42.50 (approx. EUR   10). 23.     She also produced a certificate issued on 10   August   2009 by the Social Care Centre confirming that she had received the following benefits: monthly family benefit in the amount of PLN   43 (approx. EUR   11) and PLN   170 (approx. EUR   38) because she raised her child on her own between 1   May and 31 August 2005, monthly family benefit of PLN   43 between 1   March and 31   August   2006 and PLN   68 (approx. EUR   17) between 1   September   2009 and 1   August   2007. Additionally, she received PLN   90   (approx. EUR   20) and PLN   100 (approx. EUR   25) at the beginning of September   2004 and September   2006 respectively for the beginning of the school year. 24.     The applicant submitted that her employment contract could not be terminated earlier than on 30   April   2002 because of the need to train a new employee who would replace her at work and because of her financial commitments towards the employer. B.     Relevant domestic law and practice 25.     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). COMPLAINT 26.     The applicant complained in substance under Article 1 of Protocol No. 1 to the Convention about divesting her of her right to the EWK pension. THE LAW ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION A.     Preliminary issues 1.     Scope of the case before the Court 27.     The applicant complained that divesting her, in the circumstances of the case, of her 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.” 2.     The Government’s objections 28.     The Court notes that the Government raised several objections to the admissibility of the case. They submitted that the applicant had not complied with the six-month time requirement, as required by Article 35 § 1 of the Convention. They further submitted that the application constituted an abuse of the right of individual application, and that the applicant had failed to exhaust domestic remedies because she should have lodged a complaint with the Constitutional Court. They also claimed that the present application was incompatible ratione materiae and ratione personae with the Convention. 29.     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 28   April   2004 whereas the applicant lodged her application with the Court on 9   July   2004. 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. 30.     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 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. 31.     The Court has also already examined the Government’s objection as regards the alleged incompatibility ratione materiae of the “EWK” applications and dismissed it (see Moskal , cited above, §§   38-45). It sees no reason to depart from its previous finding. 32.     As regards the Government’s objection concerning the alleged incompatibility ratione personae with the Convention, the Court notes that the “EWK” pension in question had been granted personally to the applicant and that, following the revocation of the pension, the applicant was involved in the judicial proceedings complained of as a party. In any event, the Court has already examined a number of “EWK” applications and found, at the admissibility stage of their examination that they were not manifestly ill ‑ founded or inadmissible on any other grounds (see among many other authorities, Antoni Lewandowski , cited above, § 72; Lasota v. Poland , no.   6762/04, §   54, 2   October   2012). It follows that the Government’s objection concerning the inadmissibility ratione personae of the application must be dismissed. B.     Article 1 of Protocol No. 1 to the Convention 1.     The parties’ submissions 33.     The applicant submitted that divesting her, in the circumstances of the case, of her acquired right to an early-retirement pension had amounted to an unjustified deprivation of property. 34.     The Government claimed 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 general interest. There was also a reasonable relationship of proportionality between the interference and the interests pursued. 2.     The Court’s assessment 35.     The Court notes at the outset that the applicant’s right to early retirement had its basis in the Social Security Board’s final decision of 22   November   2001. The payment was suspended because of the applicant’s employment (see paragraph 8 above). The Court considers that the decision referred to above which granted the applicant’s right amounted to “possessions” within the meaning of Article 1 of Protocol No. 1 (see   Czajkowska and Others v. Poland , no. 16651/05, §§   50-51, 13 July 2010). It follows that Article 1 of Protocol No. 1 is applicable in the present case. (a)     General principles 36.     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 37.     The parties did not dispute that the decisions of the Rzeszów Social Security Board of 22   May   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 her 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 38.     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 39.     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 ; Lewandowski; Potok and Lew, cited above). 40.     In contrast, in the instant case the applicant did not give up her employment in order to receive the pension; on the contrary, she decided to continue employment. Her contract was dissolved by the employer five months after the pension had been granted for reasons concerning the employer (see paragraphs 9 and 21 above). Unlike in the Moskal case it cannot be said that the administrative decision was the basis to establish personal plans for the future by interrupting employment. The consequence of such dissolution of the applicant’s employment relationship was that she was entitled to an unemployment benefit for the first six months following the termination of her employment (see paragraph 20 above). The benefit amounted to PLN   572 (see paragraph 22 above). For the first three months after the revocation of the pension the applicant also received a family benefit for her daughter in the amount of PLN   43 and an additional benefit of PLN   137 (see paragraphs 22 and 23 above). It follows that as a result of the revocation of the pension, in the crucial period directly following the revocation, she was not faced with the total and immediate loss of her only source of income (see Rzepa v. Poland (dec.), no.   30361/04, 9   April   2013, §   34). 41.     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). 42.     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. For these reasons, the Court unanimously Declares the application inadmissible.   Fatoş Aracı   Ledi Bianku   Deputy Registrar   President