CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 juin 2015

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page-break-inside:avoid; page-break-after:avoid; padding-left:1.73pt; font-family:Arial; font-size:8pt; font-weight:bold } .sFD82DC6 { margin-left:16.12pt; padding-left:1.73pt; font-family:Arial; font-size:8pt; 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 } .s62945D10 { border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top }   Communicated on 22 June 2015   FOURTH SECTION Application no. 38189/12 Jan MALECKI against Poland and 16 other applications (see list appended) STATEMENT OF FACTS The applicants are Polish nationals. A.     The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows. During various periods between 1 September 2003 and 8 March 2011 the applicants were employed as convicted persons while serving their sentences of imprisonment. For their work their received salary in the amount of half of the statutory minimum wage. The applicants were employed full-time or part-time on the basis of labour law contracts or so-called referrals ( skierowanie , regulated by Article 121 of the 1997 Code on Execution of Criminal Sentences, the 1997 Code). In all cases the situation ended on 8 March 2011 when the law was amended and the convicted persons started receiving for their work at least full minimum wage. Some applicants complained to the penitentiary authorities about being paid half of the minimum wage. They received replies from the Regional Inspectorate of Prison Service that their remuneration was calculated in accordance with the law as it stood at the material time. Therefore their complaints were considered manifestly ill-founded. Other applicants lodged civil proceedings for payment against the State Treasury in which they sought to be reimbursed the difference between full and half wage for the period of their employment prior to 8 March 2011. The domestic courts dismissed all actions lodged by the applicants reiterating that it had not been illegal to pay the prisoners half of the minimum statutory wage. The courts found no basis to apply the judgment of the Constitutional Court before the date on which the unconstitutional provision lost its binding force, which happened only on 9 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 if the Constitutional Court allows for a unconstitutional provision to remain in force for a period of time after the judgment, such situation does not give rise to claim compensation for the period of time prior to the date on which the provision lost force ( Dobrowolski 45651/11 and Wasyluk, 23299/14). The domestic court thus concluded that the salary received by the applicant for his work had been calculated in accordance with the law. The appeals were also all dismissed on similar basis. B.     Relevant domestic law and practice 1.     The 1997 Code Article 123 (2) of the 1997 Code of Execution of Criminal Sentences (the 1997 Code, Kodeks Karny Wykonawczy ), in its version which had been in force between 1   September 2003 and 8 March 2011, stated that the remuneration of a convicted person employed full-time should be not less than half of a minimum wage in Poland. The persons employed for less than full-time would have their income calculated proportionally to the number of hours worked, taking at least half of the minimum wage as a base. 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 convicted persons shall receive at least minimum statutory wage. The same Law amended Article 125 of the 1997 Code introducing a new deduction of 25% of the salary of the convicted person for a Fund aiming at professional motivation of convicted persons and development of enterprises within prisons ( Fundusz Aktywizacji Zawodowej Skazanych oraz Rozwoju Przywięziennych Zakładów Pracy ). Since 8 March 2011 this deduction adds to the existing one for Post-Penitentiary 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.     The Supreme Court’s practice In its judgment of 20 April 2006 the Supreme Court (IV CSK 38/06) 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 will lose its binding force elapses, the courts and other State authorities shall apply this provision. In consequence in such circumstances there is no possibility to re-open the proceedings.” 3.     The Constitutional Court’s judgment 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. As regards the merits of the case the Constitutional Court considered that the Constitution in principle does not forbid differentiating the basic minimum wage provided that it is justified and fulfils 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 equally treated with regard to the salary to which they are entitled. Therefore both a person employed at liberty and the one employed after a conviction shall be entitled to a salary regulated by similar rules concerning minimum wage. The reason for difference in treatment, namely whether a worker was a convicted person or not, breached the constitutional principle of equality. The Constitutional Court noted that there exist other ways to lower the costs of work of a convicted person, like tax incentives, which do not require reducing their minimum wage. 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. This period would give time necessary for employers to adapt to the new rules and to the legislator to modify the system so to compensate the employers for the rise of minimum wage and to incite them to employ the convicted persons. The impugned provision was to lose force on 9 March 2011. COMPLAINTS 1.     All applicants complain under various Articles of the Convention that they received half of their minimum wage for their work carried out while serving their prison sentences. They complain that such regulation was discriminatory and breached their property rights. 2.     Dobrowolski (45651/11); Szubrych (74228/12); Pacholski (81145/12): The applicants complain that after the amendment to the 1997 Code entered into force their salary is again reduced as a new deduction of 25 % was introduced. COMMON QUESTIONS for ALL APPLIcations All applicants complain about being paid half of the minimum statutory wage in the period between 1 September 2003 and 8 March 2011. In this connection:   1.     Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, should the constitutional complaint and the complaint with the Regional Inspectorate of Prison Service be considered as an effective remedy within the meaning of this provision?   Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention?   2.     Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? Have the applicants been deprived of their possessions in the public interest, and in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1 to the Convention?   3.     Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of being employed as convicted persons, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention?   CASE SPECIFIC QUESTIONS The applicants in cases Dobrowolski (45651/11), Pacholski (81145/12) and Szubrych (74228/12) additionally complain about deduction of 25 % introduced by the amendment to the Code of Execution of Criminal Sentences which entered into force on 8 March 2011. In this respect: 4.       (a)     Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? (b)     Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No.   1 to the Convention? Have the applicants been deprived of their possessions in the public interest, and in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1 to the Convention?     APPENDIX No. Application no. Lodged on Applicant name date of birth place of residence Facts Employment periods during the imprisonment when half wage Domestic remedies engaged in respect of the complaint about half of the minimum wage Other complaints to be communicated       401/11 07/12/2010 Wiesław SZABELKOWSKI 01/04/1971 Wolow   Served five-year sentence of imprisonment in Wołów Prison. 26 June 2009 (or April 2009) until 8 March 2011. Full-time employment   Complaint with the Ministry of Justice lodged on 18 October 2010. On 25 November 2010 the Wrocław Regional Inspectorate of Prison Service dismissed the complaint.   None   3741/11 11/01/2011 Sławomir PÓŁKOŚNIK 13/12/1966 Milicz   The applicant served a sentence of imprisonment in Oleśnica and Wołów Prison. 1. 11/2006 – 07/2007 full-time employment 2. 18/03/2008 – 08/03/2011; part-time employment.   Complaint with the Ministry of Justice lodged on 29/11/2010 and on 07/12/2010 On 11 February 2011 the Wrocław Regional Inspectorate of Prison Service dismissed the complaints. None   45651/11 28/06/2011 Krzysztof DOBROWOLSKI 15/04/1974 Rogalinek   The applicant was serving a prison sentence in Koziegłowy prison. After 2011 still employed. 1. 15/10/2009 – 31/12/2010 full time employment 2. 01/01/2011 - 8/03/2011 (half time)   2. 9/03/2011 – 23/06/2013 (Minimum wage)   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 Under Article 14 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   Since 2000 the applicant serves sentence of 25   years’ imprisonment.   February 2005 – 8 March 2011   The applicant lodged a civil claim for compensation. However his motion for exemption from the court’s fees and for legal aid was dismissed by the Sieradz Regional Court on 8 March 2011 (upheld by the Lodz Court of Appeal on 7 April 2011). The courts found his claim for payment manifestly ill-founded. None No. Application no. Lodged on Applicant name date of birth place of residence Facts Employment periods during the imprisonment when half wage Domestic remedies engaged in respect of the complaint about half of the minimum wage Other complaints to be communicated       78490/11 18/10/2011 Sławomir PAWLAK 06/06/1973 Elbląg   From 12 July 2007 until 14   January 2009 employed part-time.     From 8 December 2005 until 14   January 2009 almost continuously for part time (except 2 months of full time).     The applicant lodged a civil claim for compensation. On 22 June 2010 his motion for legal aid lawyer was dismissed. On 13 September 2010 the Elbląg District Court found itself incompetent to deal with this case and transferred it to a penitentiary court. The case was further transferred between courts. Outcome of the proceedings unknown.   None   33379/12 29/05/2012 Adam BŁACH 21/11/1969 Głogów   The applicant was employed in the Wołów Detention Centre. 21/05/2009 – 08/03/2011     Complaint with the Ministry of Justice. On 20 March 2012 the Wroclaw Regional Inspectorate of Prison Service dismissed the complaint. None   38189/12 08/05/2012 Jan MALECKI 11/06/1959 Zambrów   The applicant was employed in the Czerwony Bór Detention Centre.   1. 13/07/2007 – 18/12/2007 (7/8 of the time) 2. 15/04/2008 – 13/11/2009 (6/8 of the time)   The applicant lodged a civil claim for compensation. His claim was dismissed on 9 June 2011 by the Zambrów Regional Court. On 14   December 2011 the Łomża Regional Court dismissed the applicant’s appeal. None   47847/12 23/07/2012 Krzysztof IMIOŁEK 20/04/1978 Wołów   The applicant was employed in the Wołów Detention Centre. From January 2004 until 8 March 2011 (mostly part-time employment, for one year full time). He lodged a complaint with the prison authorities. His complaint was dismissed on 5 July 2012 by the Regional Inspectorate of the Prison Service.   None   56382/12 28/08/2012 Krzysztof JASIŃSKI 13/03/1981 Głogów   The applicant was employed in the Głogów Prison. 05/08/2008-05/12/2008 23/07/2009-17/12/2010   The applicant lodged a complaint which was dismissed on 28 June 2012 by the Wrocław Regional Inspectorate of Prison Service. None No. Application no. Lodged on Applicant name date of birth place of residence Facts Employment periods during the imprisonment when half wage Domestic remedies engaged in respect of the complaint about half of the minimum wage Other complaints to be communicated       60722/12 10/09/2012 Grzegorz WRÓŻ 21/05/1979 Wołów   The applicant was employed in the Racibórz and Wrocław Prison. 23 February 2005 to 4 January 2007 (full-time employment) 19 July 2007 to 19 August 2008 (part-time).   The applicant complained with the Ministry of Justice. His complaints were dismissed by the Regional Inspectorate of Prison Service on 26 September and 15   October 2012.   None   66342/12 21/09/2012 Mirosław WOJCIECHOWSKI 22/02/1968 Wronki   The applicant worked in several prisons.         7 Jan 2008 to 8 March 2011 The applicant lodged a civil claim 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. None   67079/12 01/10/2012 Zbigniew MARTYNIAK 02/11/1972 Żagań   The applicant was employed in the Wołów Prison.     March 2005 to March 2010 The applicant worked in prison for 9 months and 15 days (from 12 December 2006 to 23 July 2007 and from 14 January to 20 March 2008 He instituted civil proceedings for the protection of his personal rights and he raised the above issue in his action before the domestic court. On 2 December 2011 the Wrocław Regional Court dismissed the applicant’s claim. On 26 April 2012 the Wrocław Court of Appeal dismissed his appeal. None   74228/12 06/11/2012 Mariusz Andrzej SZUBRYCH 02/11/1957 Poznań   He served prison sentence in the Koziegłowy Prison     June 2006 and December 2007- March 2011 and September 2012 None Additional deductions of 10 % and 25% introduced after 2011 – complaint about it dismissed by the Ombudsman on 20 April 2012. No. Application no. Lodged on Applicant name date of birth place of residence Facts Employment periods during the imprisonment when half wage Domestic remedies engaged in respect of the complaint about half of the minimum wage Other complaints to be communicated       81145/12 13/12/2012 Jan PACHOLSKI 27/07/1962 Wołów   The applicant was employed when detained in Wołów Prison,   11 July 2005 to 15 November 2007, 14 February until 21 May 2008 27 January 2010 to 8 March 2011 The applicant complained 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.   Additional deductions of 10 % and 25% introduced after 2011 – 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   The applicant was employed in the Herby and Wołów Prison. March 2005 to March 2010 The applicant brought 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. None   61693/13 09/09/2013 Andrzej TOMICZ 10/01/1971 Strzelce Opolskie   The applicant was employed in Racibórz Prison.   27 July 2006 – 10 March 2009 The applicant brought 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.   None   23299/14 13/03/2014 Andrzej WASYLUK 09/08/1968 Nysa   The applicant worked in Strzelce Opolskie Prison     22 November 1996 to 11 September 2008 The applicant brought a civil action for compensation against the State Treasury. On 11 March 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 the applicant was informed by the legal aid lawyer about the lack of grounds for cassation appeal. None