CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 mars 2018

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margin-left:2.9pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:8pt } .s7E985A6E { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:8pt } .sD09CEEED { margin-left:17.51pt; padding-left:0.34pt; font-family:Arial; font-size:9pt; font-weight:bold } .sBCA334AF { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s7CB6920E { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sB853CD26 { font-family:Arial; font-size:8pt } .s568FEA12 { width:27.31pt; display:inline-block } .s62945D10 { border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     FIRST SECTION DECISION Application no. 45651/11 Krzysztof DOBROWOLSKI against Poland and 10 other applications (see list appended)   The European Court of Human Rights (First Section), sitting on 13   March 2018 as a Chamber composed of:   Linos-Alexandre Sicilianos, President,   Aleš Pejchal,   Krzysztof Wojtyczek,   Ksenija Turković,   Pauliine Koskelo,   Tim Eicke,   Jovan Ilievski, judges, and Abel Campos, Section Registrar, Having regard to the above applications lodged on the various dates indicated in the appended table, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is set out in the appendix. 2.     The Polish Government (“the Government”) were represented by their Agent, 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. 1.     Background 4.     During various periods between 1 September 2003 and 8 March 2011 the applicants were employed while serving prison sentences. For their work their received a salary in the amount of half of the statutory minimum wage guaranteed to other employees. It appears that all the applicants were employed full-time or part-time on the basis of “referrals” ( skierowanie   ‑   regulated by Article 121 of the 1997 Code on Execution of Criminal Sentences, hereinafter “the Code”). 5.     In all cases the situation ended the latest on 8 March 2011 when the law was amended and the minimum wage of convicted persons was aligned with the minimum wage guaranteed to other employees. 2.     Civil proceedings for compensation 6.     Nine applicants (applications nos. 45651/11, 68650/11, 49/12, 66342/12, 29795/13, 61693/13, 23299/14, 31865/14, 56847/14) lodged civil claims for payment against the State relying on different legal basis (liability for tort, infringement of personal rights, liability in employment relations). The claims were brought on various dates after the Constitutional Court had established the unconstitutionality of Article 123 of the Code (see paragraph 14 below). The applicants sought reimbursement of the difference between full and half the minimum wage for the periods of their employment prior to 8 March 2011. The domestic courts dismissed all actions lodged by the applicants reiterating that, in the period complained of, it had been legal to pay the prisoners half the minimum statutory wage. The courts found no basis to allow the claims for the period prior to the date on which the unconstitutional provision lost its binding force, which happened only on 8   March 2011. In two cases the courts relied on the position of the Supreme Court expressed in its judgment of 20 April 2006 in that when the Constitutional Court decided that a provision declared contrary to the Constitution will remain in force for a period of time after the judgment, such a situation did not give a right to claim compensation for the period of time prior to the date on which the provision had lost force (application nos. 45651/11 and 23299/14). The domestic courts thus concluded that the salary received by the applicants for their work had been calculated in accordance with the law. 7.     The appeals lodged by the applicants against the first-instance judgments were all dismissed on a similar basis. 3.     Complaints to the prison service 8.     Two applicants (applications nos. 60722/12 and 81145/12) complained to the prison service about being paid half of the minimum wage. They received replies from the Regional Inspectorate of the Prison Service that their remuneration had been calculated in accordance with the law as it had stood at the material time. Therefore their complaints were considered unfounded. Those two applicants did not attempt to lodge a civil claim for payment. 4.     Other deductions 9.     As of 8 March 2011 the convicted persons started receiving for their work the full minimum wage. However, their salaries were subject to a new deduction of 25 % which had been added to the existing one for the Post-Prison Aid Fund (see paragraph 12 below). One applicant (no. 45651/11) complained about those deductions to the Ombudsman and the second one (no. 81145/12) to the Regional Inspectorate of the Prison Service. Both complaints were dismissed as unfounded. B.     Relevant domestic law and practice 1.     The 1997 Code 10.     Article 123 § 2 of the 1997 Code of Execution of Criminal Sentences ( Kodeks Karny Wykonawczy – “the Code”), in its version applicable between 1   September 2003 and 8 March 2011, stated that the remuneration of a convicted person employed full-time should be no less than half of the minimum wage in Poland. Individuals employed on a part-time basis would have their income calculated proportionally to the number of hours worked, taking at least half of the minimum wage as a base. 11.     On 8 March 2011 the amendment to the 1997 Code entered into force (Law of 3 February 2011). The new Article 123 § 2 stipulates that the prisoners shall receive at least the statutory minimum wage. 12 .     The same Law amended Article 125 of the 1997 Code by introducing a new deduction of 25% of the salary of the convicted person for a Fund aimed at helping convicted individuals to become professionally active and the development of businesses within prisons ( Fundusz Aktywizacji Zawodowej Skazanych oraz Rozwoju Przywięziennych Zakładów Pracy ). Since 8 March 2011 this deduction has been added to the existing one for the Post-Prison Aid Fund ( Fundusz Pomocy Postpenitencjarnej ). The deduction for the latter Fund was decreased from 20% prior to 8 March 2011 to 10% after that date. 2.     Supreme Court’s practice 13.     In its judgment of 20 April 2006 the Supreme Court (IV CSK 28/06) stated as follows, in so far as relevant: “By delaying the date on which a provision loses its force the Constitutional Court indicates its position regarding prospective effects of its judgment. To think otherwise would challenge the meaning of such postponing. It means that, until the period after which the provision loses its binding force elapses, the courts and other State authorities shall apply this provision. In consequence in such circumstances there is no possibility to reopen the proceedings.” 3.     Constitutional Court’s judgment 14 .     On 23 February 2010 the Constitutional Court gave a judgment in a case originating from a preliminary question referred to it by a domestic court (P   20/09). The Constitutional Court held that Article 132 § 2 of the 1997 Code was incompatible with Articles 32 and 65 § 4 taken in conjunction with Article 2 of the Constitution. The court stated: „In Poland there has been high unemployment since many years. In such conditions the main problem is to secure work for persons serving prison sentences. The prison administration is unable to provide work to majority of prisoners, while those persons are in general interested in taking up employment during their imprisonment.” As regards the merits of the case, the Constitutional Court considered that the Constitution in principle did not forbid differentiating the basic minimum wage, provided that it was justified and fulfilled other conditions. The Constitutional Court considered that the prisoners’ work should not be perceived as punishment and that they also have right to just remuneration. The court dismissed as irrelevant the arguments of the Sejm and the Prosecutor General that their work was a part of re-socialisation process. The Constitutional Court decided that all employees, regardless of the legal basis of their employment, should be treated equally with regard to the salary to which they are entitled. Therefore both a person at liberty in employment and one employed during detention shall be entitled to a salary regulated by similar rules concerning minimum wage. The reason for the difference in treatment – whether a worker was a convicted person or not – breached the constitutional principle of equality. The Constitutional Court noted that there existed other ways to lower the costs of work of a convicted person, like tax incentives, which do not require reducing their minimum wage. 15 .     The Constitutional Court examined the potential consequences of its judgment. It decided, on the basis of Article 190 § 3 of the Constitution, to postpone the date on which the impugned Article 123 § 2 of the 1997 Code would lose its binding force, for twelve months after the official publication of the judgment on 8 March 2010. In this respect the court noted: “At the same time it has to be underlined that the legal provisions currently in force have been a basis of operation of private and public entities. The companies employing convicted prisoners have been planning their activity and setting the amounts of salaries basing on the provisions in question. In many cases the entities employing convicted persons will be forced to raise the amount of their salaries. At the same time the change in the amount of salaries should not be a surprise to them; it however requires a period of adaptation. The Constitutional Court considers that in the described circumstances it is necessary to delay the entry into force of the judgment. For this reason the court decided that the impugned provision would lose its binding force, as specified in the operative part, after twelve months. This period may also be used by the legislature to create mechanisms in order to compensate the employers of the convicted persons for the negative consequences of the rise in the minimum salary and to create other incentives to employ the convicted persons.” COMPLAINTS 16.     The applicants relied on various provisions of the Convention, including Article 14 and Article 1 of Protocol No. 1 to the Convention. In essence, they complained that lowering their remuneration below the statutory minimum wage, on the basis of their status as prisoners, had been discriminatory and constituted interference with their property rights. 17.     In addition to that two applicants (application nos. 45651/11 and 81145/12) complained about a new deduction from their salaries for a Fund aimed at helping convicted people to become professionally active and the development of enterprises within prisons, introduced on 8 March 2011. THE LAW A.     Joinder of the applications 18.     Having regard to the similar factual and legal background of the applications, the Court finds it appropriate to examine them jointly in a single decision pursuant to Rule 42 § 1 of the Rules of Court. B.     Alleged violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.   1 19.     The applicants complained that the regulation allowing those engaged in work while imprisoned to be paid half of the basic minimum wage system had been discriminatory. They relied in substance on Article   14 of the Convention taken in conjunction with Article 1 of Protocol No.   1. Article 14 “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 “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.” 1.     The parties’ submissions 20.     In nine cases (indicated in the appendix) the Government raised a preliminary objection that the applicants had not exhausted the domestic remedies available to them, as required by Article 35 § 1 of the Convention. According to the Government there were several types of remedies effective in the situation at hand. In particular, the applicants should have complained to the Regional Inspectorate of the Prison Service, lodged a constitutional complaint and afterwards a civil action under Article 417¹ § 1 of the Civil Code. In respect of two cases (indicated in the appendix) the Government did not raise the argument of non-exhaustion of domestic remedies as they acknowledged that the applicants had correctly based their civil actions on Article 417¹ § 1 of the Civil Code. Moreover, as regards six applications (indicated in the appendix) the Government considered that, depending on the Court’s decision on the effectiveness of the complaint to the Regional Inspectorate of the Prison Service and of the civil claim on the basis of Article 417 of the Civil Code, the applications might be considered as not complying with the six-month rule. 21.     In the eventuality of the Court’s ruling that the application was not inadmissible, the Government argued that the domestic law which permitted paying the prisoners half of the statutory minimum wage had had a legitimate justification. It had served a legitimate purpose of reducing the cost of their work and preventing them from losing jobs. The Government further underlined that in the matter of standards for remuneration of prisoners for work there was no wide European consensus. They considered that the States enjoyed a considerable margin of appreciation in this regard taking into account their own organisation of the prison service and labour laws. According to the their information in other member States prisoners received in general lower remuneration; some participated in the costs of their maintenance in prison and their pay was subject to various deductions. The Government also referred to European and International legal standards and noted that the United Nations standard minimum rules for the treatment of prisoners or the European Prisons Rules did not indicate that the pay for prisoner’s work should be exactly the same as that of other workers. 22.     In Poland all costs of maintenance of prisoners are borne by the State. In sum, the Government argued that the situation at hand did not disclose discriminatory treatment of prisoner-workers as their situation had differed substantially from that of an ordinary employee. 23.     The applicants disagreed with the Government’s preliminary objections and argued that their applications were admissible. Their work had not been substantially different to that carried out by regular employees. They considered that by lowering their remuneration below the statutory minimum level, the State had exceeded their margin of appreciation in assessing whether and to what extent differences in otherwise similar situations had justified different treatment. The applicants relied on the Constitutional Court’s judgment which stated: “all working people regardless of the legal basis of their employment should be treated equally with regard to the minimum wage, so without differentiation, both discriminatory or favouring. Both convicted people and regular employees are entitled to receive the minimum wage for similar work.” 2.     The Court’s assessment 24.     The Court takes note of the Government’s objections on the grounds of non-exhaustion of the domestic remedies and non-compliance with the six-month time-limit. However, it considers that it must first determine whether Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1, is applicable to the instant cases. In that context it also reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols; it has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the provisions in question. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and its Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 39-40, ECHR 2005‑X; Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009; and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010). 25.     The Court reiterates that Article 1 of Protocol No. 1 does not apply to future income (see, in particular, Van Marle and Others v.   the   Netherlands , 26 June 1986, §§ 39-41, Series A no. 101; We ndenburg and Others v. Germany (dec.), no. 71630/01, ECHR 2003 ‑ II; and Buzescu v.   Romania , no. 61302/00, § 81, 24 May 2005) nor does it create a right to acquire property. There is no right under the Convention to continue to be paid a salary of a particular amount (see, Koufaki and Adedy v. Greece (dec.), nos. 57665/12 and 57657/12, § 33, 7 May 2013, with further references). 26.     In the context of Article 1 of Protocol No. 1 to the Convention, the Convention institutions have consistently held that “possessions” within the meaning of that provision can be either “existing possessions” or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised (see Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 69, ECHR 2002 ‑ VII, with further references). 27.     The Court firstly observes that the cases under consideration concern relations between prisoners carrying out remunerated work and their employers, whether prisons or external companies. The applicants’ work was not compulsory and they were aware of the financial conditions and accepted them. The Court notes that the State regulated the minimum wage of prisoners in that it could not have been less than half of the minimum statutory wage but did not limit the maximum amount which in theory could reach, or exceed, the minimum statutory wage. The applicants’ belief that prior to the law changing on 8 March 2011 their pay should have been equal to that of ordinary workers has not been recognised by law or any judicial decision. 28.     Moreover it cannot be said that the Constitutional Court’s judgment of 23 February 2010 created an enforceable claim to the full minimum wage as the court expressly postponed application of its judgment until 8 March 2011. The applicants could not claim to have had a “legitimate expectation” that a civil claim for payment of the full minimum wage relating to the period prior to 8   March 2011 would have been determined in their favour. The Constitutional Court clearly decided what consequences its judgment would have and provided that the unconstitutional provision of the domestic law would lose its binding force only twelve months after the official publication of the judgment (see paragraph 15 above). At the time prior to this judgment and subsequent amending legislation, the applicant did not have a legitimate expectation which could give rise to an issue under Article   1 of Protocol No. 1 to the Convention (see Berezovskiy v. Ukraine (dec.), no. 70908/01, 15 June 2004 and see Karuna v. Ukraine (dec.), no.   43788/05, 3 April 2007). 29.     The Court accordingly concludes that the applicants have not shown that they had a claim which was sufficiently established to be enforceable, and they therefore cannot argue that they had a “possession” within the meaning of Article 1 of Protocol No. 1 (see, among other authorities, Gratzinger and Gratzingerova (dec.), cited above, § 74). Neither the judgments of the national courts nor the application of Article 123 of the Code in their cases amounted to interference with the peaceful enjoyment of their possessions, and the facts of the case do not fall within the ambit of Article 1 of Protocol No. 1. 30.     Having regard to the fact that Article 14 of the Convention is not autonomous, and concluding that the facts of the cases do not fall within the ambit of Article 1 of Protocol No. 1, the Court considers that Article   14 cannot apply in the instant case. 31.     It follows that the complaint under Article 14 taken in conjunction with Article 1 of Protocol No. 1 to the Convention is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35   §   4. Consequently, it is not necessary for the Court to examine the Government’s objections on non-compliance with the six-month requirement and failure of some applicants to exhaust domestic remedies. C.     Other complaints 32.     Two applicants (see the table below) additionally complained about deductions from their pay which had been introduced on 8   March 2011. In particular 25% of the salary of a convicted person was deducted for a new Fund aimed at helping convicted individuals become professionally active and the development of businesses within prisons. 33.     The applicants submitted no evidence to show that such a deduction was arbitrary or incompatible with the general interest, within the meaning of Article 1 of Protocol No. 1. It would appear that the deduction has been made on account of the fact that the applicants have incurred no expenses for board and lodging in prison. The Court notes in the first place that collecting such a contribution is not in itself at variance with the Convention (see Stummer v. Austria [GC], no. 37452/02, § 103, ECHR 2011, and Puzinas v. Lithuania (dec.), no.   63767/00, 13   December 2005). Moreover, it should be noted that on the same date the existing deduction for Post-Prison Aid Fund decreased from 20% to 10% after to 8 March 2011. 34.     It follows that the reminder of the application is manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4 of the Convention. For these reasons, the Court Decides, unanimously, to join the applications listed in the Appendix; Declares, by a majority, the applications inadmissible. Done in English and notified in writing on 5 April 2018.   Abel Campos   Linos-Alexandre Sicilianos   Registrar   President APPENDIX No. Application no. Lodged on Applicant name date of birth place of residence Domestic remedies engaged in respect of the complaint about half of the minimum wage Government’s objections Relevant employment periods Other complaints     45651/11 28/06/2011 Krzysztof DOBROWOLSKI 15/04/1974 Rogalinek   Two civil actions against the State Treasury; dismissed by Poznań District Court on 12   December 2013 and 25 February 2014. Upheld on appeal by the Poznań Regional Court on 16   September 2014 and 19 September 2014. Non-exhaustion     15/10/2009 – 31/12/2010 01/01/2011 - 8/03/2011     About new deductions introduced on 8 March 2011. Complained about them to the Ombudsman (reply on 1 April 2011).   68650/11 11/10/2011 Dariusz RUDNICKI 20/07/1964 Sieradz   A civil action for compensation. His request for exemption from the court’s fees and for legal aid dismissed by the Sieradz Regional Court on 8   March 2011 on the ground that the action was ill-founded (upheld by the Lodz Court of Appeal on 7   April 2011, delivered to him on 15 April 2011).   Non-exhaustion Six-months February 2005 – 8 March 2011   None   49/12 29/11/2011 Grzegorz BĄKOWSKI 10/12/1958 Nowogród Bobrzański   A civil action against the State Treasury; dismissed by Wołów District Court (I C 44/10); the case was transferred to the Wrocław Penitentiary Court which on 16/09/2011 dismissed the claim (V Pen 1280/11)   Non-exhaustion 12 December 2006- 19 March 2007 23 October 2008 – 19 August 2009   None   60722/12 10/09/2012 Grzegorz WRÓŻ 21/05/1979 Wołów   A complaint with the Ministry of Justice. His complaints were dismissed by the Regional Inspectorate of Prison Service on 26 September and 15   October 2012.   Non-exhaustion Six-months 23 February 2005 to 4 January 2007) 19 July 2007 to 19 August 2008 None   66342/12 21/09/2012 Mirosław WOJCIECHOWSKI 22/02/1968 Wronki A civil action for compensation against the State Treasury. On 30 December 2011 the Szamotuły District Court dismissed his claim. On 24 July 2012 the Poznań Regional Court dismissed his appeal. Non-exhaustion Six-months   07 Jan 2008 to 8 March 2011 None   81145/12 13/12/2012 Jan PACHOLSKI 27/07/1962 Wołów   A complaint with the Regional Inspectorate of the Prison Service raising the issue that he should have been paid at least a minimum salary. On 31 October 2012 the authority dismissed his complaint as unfounded. Non-exhaustion Six-months 11 July 2005 to 15 November 2007, 14 February until 21 May 2008 27 January 2010 to 8 March 2011 About new deductions introduced on 8 March 2011. A complaint about it dismissed on 4 July 2014 by the Regional Inspectorate of the Prison Service.     29795/13 25/04/2013 Tomasz SUSZYNA 25/08/1978 Wrocław   A civil action against the State Treasury. On 14 June 2012 the Racibórz District Court dismissed the claim and on 9 October 2012 the Częstochowa Regional Court finally dismissed his appeal (unknown date of the notification of the reasoned judgment).   Six-months   March 2005 to March 2010 None   61693/13 09/09/2013 Andrzej TOMICZ 10/01/1971 Strzelce Opolskie   A civil action against the State Treasury. The Raciborz District Court on 9 October 2012 dismissed the applicant’s claim. On 13 March 2013 the Gliwice Regional Court upheld the above judgment.   Non-exhaustion Six-months   27 July 2006 – 10 March 2009 None   23299/14 13/03/2014 Andrzej WASYLUK 09/08/1968 Nysa   A civil action against the State Treasury. On 11 March 2012 the Warsaw Regional Court dismissed his claim. On 23 October 2013 the Warsaw Court of Appeal dismissed the applicant’s appeal. On 17   January 2014 his legal aid lawyer informed him about the lack of grounds for cassation appeal.   None 22 November 1996 to 11 September 2008   None   31865/14 12/06/2014 Piotr WIECZOREK 20/11/1974 Wronki A civil action against the State Treasury; on 12 April 2013 dismissed by the Szamotuły District Court (I C 881/12); on 31 January 2014 the Poznań Court of Appeal dismissed the appeal (II Ca 1057/13).   Non-exhaustion 23 October 2009- 31 January 2011. None   56847/14 06/08/2014 Rafał SAGAN 22/11/1975 Piła   A civil action against the State Treasury; on 24 May 2013 dismissed by the Szubin District Court (V C 149/13); on 3   April 2014 the Bydgoszcz Court of Appeal dismissed the appeal (II Ca 670/13). Non-exhaustion 20 October 2008 – 25 March 2010; 10 May – 1 August 2010 None