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

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POLAND   (Application no. 43129/04)             JUDGMENT         STRASBOURG   11 February 2014                   This judgment is final but it may be subject to editorial revision. In the case of Burczy 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. 43129/04) 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 Franciszek Burczy (“the applicant”), on 15 November 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. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The facts of the case, as submitted by the parties, may be summarised as follows. 6.     The applicant was born in 1955 and lives in Mielec. 7.     The applicant is married and has four children born in 1982, 1984, 1986 and 1994. Prior to his application for an early-retirement pension he had been unemployed with no right to unemployment benefit. A .     Proceedings concerning the grant and revocation of the EWK pension 8.     On 31   May   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. 9.     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 medical centre. The certificate stated that the child (born in 1994) suffered from chronic asthma and that she was in need of her parent’s constant care. 10.     On 31   July   2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an early ‑ retirement pension in the net amount of 870.83 Polish zlotys (PLN). The pension was granted with retroactive effect of 1   May   2001. 11.     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. 12.     On 18   July   2002 the Rzeszów Social Security Board reopened the pension proceedings and, on 8   August   2002, the Board refused the applicant the right to early retirement and discontinued the payment of the pension with effect of 1   August   2002. 13.     The applicant appealed against the decision 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 applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights. 14.     On 24   October   2003 the Tarnobrzeg Regional Court ( Sąd Okręgowy ) amended the challenged decisions and granted the applicant the right to early retirement pension with effect of 1   August   2002. The Regional Court found that the applicant could not bear the responsibility for the mistake made by the administrative authorities. It further held that the pension proceedings could not be reopened in this case because no new circumstances had arisen; the reopening decision was based on the same circumstances freshly assessed. 15.     The Rzeszów Social Security Board appealed against the first ‑ instance judgment. 16.     On 17   March   2004 the Rzeszów Court of Appeal ( Sąd Apelacyjny ) amended the first-instance judgment and dismissed the applicant’s appeal against the Social Security Board’s decisions. It held, among other things, that the Social Security Board based its decisions on evidence which did not constitute basis for the original decision granting the applicant the early retirement pension, namely medical documentation concerning the applicant’s daughter. 17.     On 22   June   2004 the Supreme Court ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant’s lawyer. B.     The applicant’s financial situation following the revocation of the EWK pension 18.     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. 19.     The Government submitted that after the revocation of the applicant’s pension, he was employed between 6 and 8   August 2002, between 2   October and 31 December 2002, 19 January and 31   May 2003, 10   August and 10 October 2003, 3 November and 31 December 2003, 13   January and 6 November 2004, 30 July and 4 August 2005, 19 and 23   June 2006, 30 July and 8 December 2008. According to the Government’s submissions the applicant was receiving an unemployment benefit for one year between January 2005 and January 2006 and, subsequently for 3   months in 2009. 20.     The Government further submitted that the applicant’s income represented some 12.11% of the average remuneration in Poland in 2002 27.99% in 2003, 29.09% in 2004, 21.91% in 2005, 18.88% in 2006, 30.25% in 2007, 33.02% in 2008, 15.09% in 2009 and 52.54% in 2010. 21.     The applicant submitted a document issued by the Social Security Board on 17 August 2009 confirming that his early-retirement pension had been revoked with effect of 2 August 2002 and that after that date he had not received any payments from his retirement or disability insurance. 22.     The applicant further submitted copies of the Social Security Board’s decisions according to which he was receiving monthly family benefit for his four children. The benefit amounted to PLN   135.96 in August 2001, PLN   469.02 in October 2001, PLN   409 in June 2002 and PLN   333.06 in October 2002. The applicant further produced a certificate issued by the Social Care Centre on 18 August 2008, according to which the applicant’s family was receiving a social care benefit between 1   May 2004 and 31 August 2007. After the latter date the social care centre did not pay the applicant any further benefits. The certificate did not specify the amount of benefit granted. II.     RELEVANT DOMESTIC LAW AND PRACTICE 23.     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. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION 24.     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. The 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 The Government’s preliminary objections (a)     Abuse of the right of an individual application 25.     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. 26.     In particular, the Government argued that the applicant had misled the Court in representing himself as a person who wished to stay at home to take care of his daughter. In reality, the applicant was unemployed and did not have to give up job. What is more, his wife did not work at the relevant time and also could take care of her daughter herself. In the Government’s view, the applicant had sought the early retirement not because he had wished to take care of his child at home but because she had wanted to have a source of income. 27.     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 Rehak v.   the Czech Republic (dec.), no. 67208/01, 18 May 2004). 28.     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 on their assessment of his overall financial situation after the revocation of the pension. It has not been disputed that the applicant did not work while in receipt of the EWK pension and only started working after his pension had been withdrawn. 29.     The Government’s preliminary objection should therefore be dismissed. (b)     Non-compliance with the six-month rule 30.     The Government also submitted that the applicant had failed to comply with the six-month rule. 31.     The applicant did not make any comment on this objection. 32.     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 22   June   2004, whereas the applicant lodged his application with the Court on 15   November   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. B.     Merits 1.     The parties’ submissions (a)     The applicant 33.     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 34.     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. In particular, the Government further submitted that the applicant had not been forced to resign from work in order to receive the EWK   pension because he had been unemployed at the relevant time and that he undertook employment six days after the EWK pension had been revoked. 2.     The Court’s assessment (a)     General principles 35.     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 36.     The parties agreed that the decision of the Rzeszów Social Security Board of 8   August 2002 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 37.     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 38.     In the instant case, a property right was generated by the favorable 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 paragraph 10 above). Before being invalidated the decision of 31   July   2001 had undoubtedly produced effects for the applicant. 39.     It must be stressed that the delay with which the authorities reviewed the applicant’s dossier was relatively long. The decision of 31   July 2001was left in force for twelve 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 paragraph 12 above). Even though the applicant had an opportunity to challenge the Social Security Board’s decision of 8   August 2002 in judicial review proceedings, his right to the pension was eventually determined by the courts only two and a half years later (see paragraph 17 above). 40.     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). 41.     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 18 above) and that the applicant did not have to resign from employment to be granted the pension because he was unemployed at the relevant time did not mitigate sufficiently the consequences for the applicant flowing from the interference in his case. 42.     It should also be observed that 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. It is true that the applicant managed to find employment shortly after his pension had been revoked. However, in the crucial period following the revocation of the pension the applicant worked on the basis of short-term contracts; some three weeks in August 2002 and, subsequently between 2   October and 31   December 2002. From the Government’s submissions it emerges that in September 2002 the applicant did not work (see paragraph 19 above). The Court further notes that the applicant’s income in the period following the revocation of the pension was very modest and amounted to 12.11% of the official average salary in Poland in 2002 and to 27.99% in 2003 (see   paragraph 20 above). 43.     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. 44.     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 45.     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 46.     The applicant claimed 12,000 euros (EUR) in respect of non ‑ pecuniary damage. 47.     The Government considered the application inadmissible and did not comment on the applicant’s just-satisfaction claims. 48.     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   2,500 to cover all heads of damage. B.     Costs and expenses 49.     The applicant did not make any claim in respect of costs and expenses. C.     Default interest 50.     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   2,500 (two 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