CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 décembre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .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 } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .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 } .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 } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; 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 } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .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 } .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 } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sB76CD870 { width:27.78pt; display:inline-block } .sF44FED33 { width:120.41pt; display:inline-block } .sF7DC134C { width:39.46pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     FIRST SECTION DECISION Application no. 41178/12 Jan RAŁ against Poland   The European Court of Human Rights (First Section), sitting on 11   December 2018 as a Chamber composed of:   Linos-Alexandre Sicilianos, President,   Ksenija Turković,   Krzysztof Wojtyczek,   Armen Harutyunyan,   Pauliine Koskelo,   Jovan Ilievski,   Gilberto Felici, judges, and Abel Campos, Section Registrar, Having regard to the above application lodged on 19 June 2012, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the comments submitted by the Polish Government, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Jan Rał, is a Polish national who was born in 1946 and lives in Opole. He was represented before the Court by Ms   M.   Nowakowska, a lawyer practising in Opole. 2.     The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, who was later replaced by Mr J. Sobczak, of the Ministry of Foreign Affairs. A.     The circumstances of the case 3.     The facts of the case, as submitted by the applicant, may be summarised as follows. 4.     The applicant served in the army between 1968 and 1983. 5 .     On 3 January 1984 he was granted a military retirement pension and, as he had been found to be partly unfit for work, a military disability pension. His military benefit was calculated on the basis of his service in the army (sixteen years, eight months and five days) and his employment outside of the army (two periods, two months and eighteen days and one year and eight days). The payment of the military retirement pension was suspended and, since then, the applicant has been receiving the military disability pension, as that benefit is the most advantageous to him. 6.     After the termination of his military service, in 1984 he undertook employment outside of the military and remained in work until 2009. Throughout this period he paid compulsory contributions into the Social Insurance Fund. 7.     On 6 April 2010 the applicant lodged a request to be granted a retirement pension from the Social Security Board (Zakład Ubezpieczeń Społecznych) . He submitted documents confirming his employment from 23   January 1984 until 31 December 2009. However, since at that time he had not yet reached retirement age, he was ordered to undergo an examination by the Social Security Board’s doctor to establish his right to early retirement. By a decision of 17 June 2010 the Social Security Board’s doctor recognised the applicant as fully unfit for work from 7 April 2010. 8 .     On 20 July 2010 the Social Security Board issued a decision by virtue of which the applicant was granted the right to an early retirement pension from the Social Insurance Fund. The board calculated the applicant’s retirement pension on the basis of twenty-six years, six months and fourteen days of contributory and non-contributory periods. The board did not take into account the period of the applicant’s military service, referring to the fact that he had been authorised to receive a military retirement pension and was receiving a military disability pension under that scheme. By virtue of the same decision, the payment of the applicant’s pension from the Social Insurance Fund was suspended because he had chosen to be paid the military disability pension. 9.     The applicant appealed against the Social Security Board’s decision of 20 July 2010, arguing that he should be paid both benefits – the military disability pension and a retirement pension from the Social Insurance Fund – because he had fulfilled the conditions laid down in the relevant provisions. 10.     On 17 November 2010 the Opole Regional Court (Sąd Okręgowy) dismissed his appeal. The court held that it was “beyond dispute” that the applicant had a right to a military disability pension and a military retirement pension, as well as a retirement pension from the Social Insurance Fund. Thus, he could choose to be paid one of these three benefits. Referring to section 95 of the Law of 17   December 1998 on pension benefits from the Social Insurance Fund ( ustawa o emeryturach I   rentach z Funduszu Ubezpieczeń Społecznych – hereinafter “the 1998 Law”) and section 7 of the Law of 10   December 1993 on social benefits for professional soldiers and their families ( ustawa o zaopatrzeniu emerytalnym żołnierzy zawodowych oraz ich rodzin – hereinafter “the 1993 Law”) (see   “Relevant domestic law and practice” below) the court concluded that the challenged decision suspending the payment of the retirement pension had been made in accordance with the relevant provisions of law and that the applicant could not be paid more than one social benefit. 11.     On 11 December 2010 the applicant appealed against the first ‑ instance judgment. He complained, inter alia , that his military service and employment had lasted a total of forty-one years and that he should be paid social benefits calculated on the basis of that entire period. The principle that no person should, in general, receive more than one social benefit (“the single benefit rule”) meant, in his view, that either his fifteen   years of military service or twenty-six years of employment would unfairly be disregarded. 12.     On 5 April 2011 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed his appeal, finding that the challenged judgment had been in accordance with the relevant provisions of law. The court confirmed that the applicant had an established right to both benefits. It noted however that under the relevant provisions he could not receive the military disability pension and the early retirement benefits from the Social Insurance Fund at the same time. 13.     On 20 May 2011 the applicant’s lawyer lodged a cassation appeal with the Supreme Court, arguing that the courts had misinterpreted the provisions concerning the single benefit rule and that the applicant should be paid both benefits – a military disability pension and a retirement pension from the Social Insurance Fund. 14.     On 8 May 2012 the Supreme Court dismissed the applicant’s cassation appeal as ill-founded. The Court endorsed the Regional Court’s and the Court of Appeal’s interpretation of the relevant provisions of law, confirming that the applicant was not authorised to be paid more than one retirement or disability benefit. It further noted that the single benefit rule was not new and had been introduced into the retirement system in 1982 and subsequently reiterated in the 1998 Law. B.     Relevant domestic law and practice 1.     Retirement pensions under the general social security scheme 15.     The rules for the determination of retirement pensions under the general social security scheme are laid down in the 1998 Law. 16.     The general social security scheme operates on the basis of two schemes (hereinafter “the old scheme” and “the new scheme”). 17 .     Under the old scheme, which applies to persons born before 1   January 1949 and persons born after 31 December 1948 but before 1   January 1969 who opted for this system, the right to a retirement pension is generally acquired by women aged sixty with at least a twenty-year contributory and/or non-contributory period and men aged sixty-five years with at least a twenty-five year contributory and/or non-contributory period. A retirement pension amounts to 24% of the so-called “base amount” (kwota bazowa) (100% of the average salary in Poland in the previous calendar year, reduced by compulsory social insurance contributions deducted from the salary) + 1.3% of the basis of assessment for each contributory year + 0.7% of the basis of assessment for each non ‑ contributory year. The basis of assessment is calculated according to the average salary (reduced by social insurance contributions) received by the person concerned over ten years selected from the last twenty years of employment (or twenty years chosen by the person concerned). 18.     The new scheme comprises the so-called “three pillars” (trzy filary) . 19.     The first pillar is managed by the Social Security Board, a public institution, while the second and third pillars are managed by private institutions. The third pillar manages supplementary private pension plans that are based on voluntary contributions; it is not relevant to the present case. 20.     In respect of the first and second pillars, social insurance contributions are compulsory and the scheme applies to persons born after 31   December 1948. The right to a retirement pension is acquired by persons who have reached the statutory retirement age (between 60 and 67 years old for women and between 65 years and five months and 67 years old for men). The level of a retirement pension is calculated as the equivalent of the total amount of pension contributions after indexation collected since 31   December 1998, plus what is known as “initial capital” (contributions collected before 1 January 1999) after indexation, divided by the average life expectancy expressed in months for a person whose age is the same as the retirement age of the person concerned. On 1 February 2014 the Act of 6   December 2013 amending the rules as regards the payment of retirement pensions from the second pillar came into force. Under the new provisions, membership in the second pillar is no longer mandatory; currently an insured person may but is not under an obligation to save his or her contributions in the second pillar; if no decision is made within the specified time-limit, the contributions of the person concerned are paid only to the mandatory first pillar. 21 .     Section 2(2) of the 1998 Law contains a special provision which grants the right to social benefits from the general social security scheme to soldiers who cannot receive benefits from the special scheme. It provides as follows: “The benefits referred to in the present act shall also be paid to professional soldiers ... if they do not fulfil the conditions for receiving (or if they have lost the right to receive) the benefits referred to in the provisions concerning retirement pensions for professional soldiers and members of the families of deceased soldiers.” 22.     Section 95(1) provides as follows: “In the case that one person is authorised to receive several of the benefits referred to in the present Act, the person concerned shall be paid one benefit – either the most advantageous or that of his own choice.” 23 .     Section 69 of the previous Act of 14 December 1982 on retirement benefits for employees and their families ( Ustawa o zaopatrzeniu emerytalnym pracowników i ich rodzin ), which entered into force on 1   January 1983, contained a similar principle – that only one retirement pension could be paid, even if the person concerned was eligible to receive more than one retirement pension or a retirement and a disability pension. 2.     Retirement pensions for soldiers and their families 24.     The rules for the determination of retirement pensions for persons serving in the military are laid down in the 1993 Law. As a rule, a military retirement pension is granted to a soldier after fifteen years of military service. 25 .     Section   1(1) provides, in so far as relevant, as follows: “Soldiers released from professional military service have the right to receive, on the basis laid down in the present Act, retirement benefits from the State budget, depending on the length of their service ...” 26.     Section 2 provides, in so far as relevant, as follows: “the retirement benefits [referred to in the previous section] shall include: a. military retirement pensions; b. military disability pensions.” 27.     Section 7 Act provides, in so far as relevant, as follows: “In the case of an overlap of a right to a retirement or disability pension referred to in the present Act or to a retirement or disability pension ... referred to in other provisions, the most advantageous benefit or the benefit chosen by the person concerned shall be paid, unless special provisions provide otherwise.” COMPLAINTS 28.     The applicant complained, under Article 6 of the Convention, that he had been deprived of his right to a fair hearing and that the courts had misinterpreted the relevant law and had not taken into account important facts and case-law. However, his de facto complaint was that he had had to choose between the retirement benefits to which he had acquired rights and that he was not being paid both benefits – the military disability pension and the retirement pension from the Social Insurance Fund. 29.     He also relied on Article 14 of the Convention, claiming that his exclusion from the system under the Social Insurance Fund amounted to discrimination. THE LAW A.     Complaint under Article 1 of Protocol No. 1 to the Convention 30.     The Court considers that the essence of the applicant’s complaint concerns the calculation of his retirement pension and the authorities’ refusal to take into account certain periods of his employment or military service; it therefore finds it more appropriate to examine the complaint from the standpoint of 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.” 1.     The parties’ submissions (a)     The Government 31.     The Government considered that the applicant’s complaints should be found inadmissible as manifestly ill-founded. 32.     They noted in the first place that there had been no interference with the applicant’s peaceful enjoyment of his possessions; the applicant had receiving his military disability pension since 1984 and his situation had not changed since his right to a retirement pension from the Social Insurance Fund had been recognised; his previous benefit had not been lowered or suspended, and he continued to receive the same amount. 33.     The Government further submitted that the payment of only one retirement benefit was in accordance with the “single benefit” rule expressed directly in the domestic law and confirmed in the case-law of the domestic courts. They also noted that that principle was not a novelty in the Polish legal system; it had already existed in the Act of 14 December 1982 on retirement benefits for employees and their families and had been further incorporated into the 1998 Law. The single benefit rule was justified by the principle of solidarity of risk and its application was well-established and raised no doubts in the domestic legal system. The provisions of domestic law in question were thus available, precise and their application foreseeable. 34.     The Government also submitted that there were some exceptions to the single benefit rule, however, they were only applicable in particular circumstances; they concerned ex-military professionals or ex-policemen who had started their service after 1 January 1999. Some exceptions were also provided for persons born after 1948 insured in the agricultural social insurance scheme. 35.     The Government further argued that the single benefit rule was based on the solidarity principle and served to protect the financial stability of the social insurance system. As such, it served the general interest. The suspension of the applicant’s social benefits had also been proportionate; the applicant had at no time been left without any means of subsistence. What was more, his case had been examined on the merits by courts at two levels of jurisdiction and, finally, by the Supreme Court. The proceedings before the domestic courts had been prompt and fair and the applicant had had full access to all procedural guarantees. (b)     The applicant 36.     The applicant submitted that he had satisfied all the conditions to be granted both benefits and was only being paid one of them. After his military service of fifteen years, he had been receiving a military disability pension since 1984. After 1984 he had started to work outside of the military and had been affiliated to the compulsory retirement scheme and had paid contributions. In the applicant’s view, this created a legitimate expectation that he would be entitled to a retirement pension from the compulsory retirement scheme in the future. 37.     As regards the Government’s submission that the decision of 20   July 2010 had not changed his situation because both before and after that decision he had been receiving the same social benefit, the applicant argued that it had changed his situation considerably since he had been granted a right to a further social benefit, namely a retirement pension from the Social Insurance Fund to which he had not previously been entitled. 38.     The applicant concluded that the domestic decisions and judgments constituted interference with the peaceful enjoyment of his possessions and that a fair balance had not been struck between the demands of general interest of the community and the requirement to protect an individual’s rights. 2.     The Court’s assessment (a)     General principles 39.     All principles which apply generally in cases concerning Article 1 of Protocol No. 1 are equally relevant when it comes to pensions. 40.     Firstly, that provision does not guarantee the right to become the owner of property. By the same logic, it cannot be interpreted as securing a right to a pension of a particular amount. It places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social-security scheme, or to choose the type or amount of benefits to be provided under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a pension   ‑   whether conditional or not upon the prior payment of contributions   –   that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Andrejeva v. Latvia [GC], no. 55707/00, §   77, with further references, in particular to Stec and Others (dec.), cited above; Kjartan Ásmundsson v. Iceland , no. 60669/00, §   39, ECHR 2004 ‑ IX; and Carson and Others v. the United Kingdom [GC], no.   42184/05, § 64, ECHR 2010). 41.     An applicant can allege a violation of Article 1 of Protocol No.   1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. Article 1 of Protocol No. 1 comes into play if the applicant has an assertable right which, applying the principle enounced in paragraph 52 of Kopecký judgment ( Kopecký v.   Slovakia [GC], no. 44912/98, ECHR 2004 ‑ IX) may not fall short of a sufficiently established, substantive proprietary interest under the national law (see Béláné Nagy v. Hungary [GC], no. 53080/13, § 79, 13 December 2016). By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no.   42527/98, §§ 82-83, ECHR 2001-VIII, and Gratzinger and   Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII). 42.     In determining whether there has been an interference, the Court’s enquiry will focus on the domestic law in force at the time of the alleged interference ( Béláné Nagy, cited above , § 85). Where the person concerned did not satisfy or ceases to satisfy, the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No.   1 where the conditions had changed before the applicant became eligible for a specific benefit (see, for, example, Bellet, Huertas and Vialatte v. France (dec.), nos.   40832/98, 40833/98 and 40906/98, 27   April 1999, and also the principles set out in Béláné Nagy, cited above , §§ 86-87). (b)     Application of these principles to the present case 43.     The Court notes that the provisions excluding the accumulation of retirement pensions from different pension schemes were introduced in 1982 (see paragraph 23 above). According to the principle of single benefit, the applicant could not be granted two benefits simultaneously. 44.     The applicant was eligible to receive benefits from two retirement systems. On 3 January 1984 he was granted a military retirement pension and, as he had been found partly unfit for work, a military disability pension. By a decision of 20 July 2010 the Social Security Board recognised his right to an ear;ly retirement pension from the Social Insurance Fund. However, it cannot be said that the applicant had a legitimate expectation that he would keep his military disability pension if he decided to claim a retirement pension from the general scheme. On the contrary, it was clear that, if he were eligible to receive retirement benefits from two different pension schemes, he would be entitled to only one pension. 45.     The Court accordingly concludes that the applicant has neither shown that – under the domestic law - he had a claim to keep two benefits nor that he had a claim to receive a single pension calculated on the basis of his entire working period within and outside of the military. He therefore cannot argue that he had a “possession” or at least a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 to the Convention. 46.     It follows that the complaint under Article 1 of Protocol No. 1 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. B.     Complaint under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention 47.     The applicant also raised a complaint that his exclusion from the system under the Social Insurance Fund amounted to discrimination. He relied on Article 14 of the Convention, which reads as follows: “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.” 48.     The Court, being master of characterisation to be given in law to the facts of the case and taking into account the substance of the applicant’s submissions considers that the present complaint falls to be examined under Article 14 of the Convention in conjunction with Article 1 of Protocol No.   1. 1.     The parties’ submissions 49.     As regards the Court’s question about Article 14 taken together with Article 1 of Protocol No. 1, the Government submitted that all persons who found themselves in circumstances similar to those of the applicant’s would be treated in the same way. Thus, the circumstances complained of did not amount to a situation in which a State, without an objective and reasonable justification, failed to treat differently persons whose situations are significantly different (the Government cited in this context Thlimmenos v.   Greece [GC], no. 34369/97, §   44, ECHR 2000 ‑ IV and Kurić and Others v.   Slovenia [GC], no. 26828/06, §   288, ECHR 2012). The Government further relied on a judgment of the Supreme Court of 4 April 2012 (I UK 390/11) in which that court stated that the single benefit rule was not contrary to the principle of equality expressed in Article 32 of the Polish Constitution and was not of a discriminatory nature. 50.     The applicant submitted that, according to the Court’s case-law, if the State decided to create a benefit or pension scheme it had to do so in a manner which was compatible with Article 14 of the Convention. He had been discriminated against as a disabled person and a pensioner in comparison to pensioners who could have their retirement pension calculated “on the basis of the period of employment” and concluded that in his case there had been a violation of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention. 2.     The Court’s assessment 51.     According to the established case-law of the Court, 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. Although the application of Article   14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands , 21 February 1997, §   33, Reports of Judgments and Decisions 1997 ‑ I; Petrovic v. Austria , 27 March 1998, § 22, Reports 1998 ‑ II; Zarb Adami v. Malta , no. 17209/02, §   42, ECHR 2006 ‑ VIII; and Konstantin Markin v. Russia [GC], no. 30078/06, §   124, ECHR 2012). 52.     Having regard to the fact that Article 14 of the Convention is not autonomous and to the conclusion that Article 1 of Protocol No. 1 is not applicable, the Court considers that Article 14 cannot apply in the instant case. 53.     It follows that the complaint under Article 1 of Protocol No. 1 taken together with Article 14 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. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 10 January 2019.   Abel Campos   Linos-Alexandre Sicilianos   Registrar   President