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You are here: BAILII >> Databases >> European Court of Human Rights >> MOSKAL v. POLAND - 10373/05 [2009] ECHR 1286 (15 September 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1286.html Cite as: [2009] ECHR 1286, (2010) 50 EHRR 22, 50 EHRR 22

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FOURTH SECTION

CASE OF MOSKAL v. POLAND

(Application no. 10373/05)

JUDGMENT

STRASBOURG

15 September 2009

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Moskal v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 25 August 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Proceedings for early-retirement pension

B.  Re-opening of proceedings for early-retirement pension

“In the light of the medical documentation obtained concerning the child, it was established that the condition with which the child had been diagnosed was not enumerated in the [1989] Ordinance, and the analysis of the level of severity and the course [of the disease] did not indicate an impairment of bodily functions to such a degree as to justify the award of the pension [on account of] the necessity of permanent care of the child. It follows that the medical certificate serving as the basis for the award of the benefit is not supported by medical documentation. Consequently the right to a retirement pension is denied.”

C.  The applicant's social security status after the revocation of the “EWK” pension

As a result of separate social security proceedings, which had been instituted by the applicant, the Strzyżów District Labour Office (Powiatowy Urząd Pracy) decided on 25 October 2005 to grant the applicant a pre retirement benefit (zasiłek przedemerytalny) in the amount of 523 Polish zlotys (PLN) net. Because, under the applicable law, a three-year statute of limitations applies to social security claims the decision to grant the right had a retroactive effect, with a starting date of 25 October 2002.

As a result, on an unspecified date, presumably on 1 August 2004, the applicant received a pre-retirement benefit in the form of a lump-sum payment for the period between 25 October 2002 and 31 July 2004, without interest.

The benefit was at first paid by the Strzyżów Regional Labour Office (Powiatowy Urząd Pracy) and since 1 August 2004 it was paid by the Rzeszów Social Security Board. As of March 2008 the applicant's pre retirement benefit amounts to 594 Polish zlotys (PLN) net.

D.  Additional information

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  System of granting social security benefits in Poland

Proceedings for granting welfare benefits are two-tier. First, an application for a benefit is made to the regional Social Security Board. The board makes an assessment of the eligibility criteria for each type of benefit and issues a decision. Then, in the event that an individual concerned appeals, the decision becomes subject to judicial review by a social security court, which is a specialised branch of a regional civil court. The Social Security Board is a State authority which carries out administrative functions and issues declaratory decisions. In the judicial review phase, the Board becomes a party to the proceedings before the social security court.

A judicial decision taken by the regional social security court may then be challenged by either party to the proceedings before a special social security branch of a court of appeal. Ultimately, a decision delivered by an appellate court may be appealed to the Supreme Court. This remedy is available irrespective of the amount of the claim.

B.  The 1989 Ordinance

Paragraph 1.1 contained a reference to section 26 paragraph 1 point 2 of the Law of 14 December 1982 on retirement pensions of employees and their families. In the relevant part it provided that persons entitled to an early retirement pension were those persons (both women and men) who had been employed for at least 20 or 25 years and who personally took care of a child.

Paragraph 1.2 provided that for children under the age of 16 it was not necessary to submit an official Social Security Board disability certificate. It was sufficient to present a medical certificate issued by a specialist medical clinic stating: “due to the health condition, caused by one of the diseases enumerated in paragraph 1.3, the child requires permanent care”.

Paragraph 1.3 provided that early retirement was justified by the following physical and/or mental conditions of the child:

“1.  Complete dysfunction of upper or lower limbs, pareses and palsies, which prevent the child from independent movement and from controlling his or her physiological functions;

2.  Mild, moderate and severe mental retardation, mental disorders, injury or disease of the central nervous system, making impossible autonomy in decisions or in daily activities;

3.  Mild mental retardation with accompanying significant impairment of movement, sight, hearing or other chronic diseases significantly impairing bodily functions;

4.  Other diseases impairing body effectiveness to a very serious degree.”

C.  Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund

“114.1  The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”

D.  The Supreme Court's resolution of 5 June 2003

“A different assessment of the [same] evidence as attached to the application for a retirement or disability pension, carried out by a social security authority after validation of the decision awarding the right to a pension, is not one of the circumstances justifying the ex officio re-opening of the proceedings for a review of the right to a pension in accordance with section 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

“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

1.  Government's preliminary objection on incompatibility ratione materiae

(a)  The Government

(b)  The applicant

2.  The Court's assessment

(a)  General principles on the applicability of Article 1 of Protocol No. 1

On the other hand where a legal entitlement to the economic benefit at issue is subject to a condition, a conditional claim which lapses as a result of the non-fulfilment of the condition cannot be considered to amount to “possesions” for the purposes of Article 1 of Protocol No. 1 (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82-83, ECHR 2001-VIII, and Rasmussen v. Poland, no. 38886/05, §71, 28 April 2009).

(b)  Application of the Convention principles to the instant case

In so far as the Government submitted that the applicant did not qualify for the “EWK” benefit, the Court will address this matter from the point of view of justification for the withdrawal of the benefit.

(c)  Conclusion on admissibility

The Court also notes that this part of the application is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties' general submissions

(a)  The applicant

(b)  The Government

2.  The Court's assessment

(a)  General principles

(b)  Application of the above principles in the present case

(i)  Whether there has been an interference with the applicant's possessions

(ii)  Lawfulness of the interference

(α)  The parties' submissions

The applicant

The Government

(β)  The Court

The Court, giving due deference to the findings of the domestic courts, accepts that the proceedings in the applicant's case had been re-opened as a consequence of the discovery of the welfare authority's own mistake in its original assessment of the applicant's eligibility for the early-retirement pension under the 1989 Ordinance. The procedure was thus used to correct an error on the part of the social security board and to divest the applicant of the right to a pension which she had acquired unjustly (see paragraphs 88 and 89 below).

(iii)  Legitimate aim

(α)  The parties' submissions

The applicant

The Government

(β)  The Court

Furthermore, the notion of “public interest” is necessarily extensive. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98; The former King of Greece and Others, cited above, § 87; and Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 67 in fine, ECHR 2002-IX).

(iv)  Proportionality

(α)  The parties' submissions

The applicant

The applicant also claimed that she had borne an excessive burden in that the decision of 25 June 2002 had deprived her of her only source of income with immediate effect.

The Government

In the Polish social security system only retirement pensions granted under the general scheme, were, in principle, permanent and irrevocable. All other benefits, based on variable conditions, were subject to verification and possible rescission.

The Government also argued that the impugned measure had been applied on a small scale and equally throughout the entire country. The cases for review had been selected at random. The social security authority had the power to undertake the review at its own discretion within the limits provided by law, in particular by section 114 of the 1998 Law.

(β)  The Court

Notwithstanding these important considerations, the Court must, nonetheless, observe that the above general principle cannot prevail in a situation where the individual concerned is required to bear an excessive burden as a result of a measure divesting him or her of a benefit.

If a mistake has been caused by the authorities themselves, without any fault of a third party, a different proportionality approach must be taken in determining whether the burden borne by an applicant was excessive.

Lastly, the fact that the applicant retained her full right to receive, as of 2015, an ordinary old-age pension from the pension fund is immaterial since this would have been the case even if she had continued to receive her “EWK” pension.

It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

II.  ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION

A.  As regards the principle of legal certainty

Article 6 § 1 of the Convention in its relevant part reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1.  The parties' submissions

(a)  The applicant

The applicant maintained that her right to an early-retirement pension had been revoked solely as a result of a new assessment of the evidence which had been attached to the original application for a pension in 2001.

(b)  The Government

Moreover, the Government relied on the principle, stated in a Supreme Court judgment of 2001 and resolution of 2003, that a party to proceedings was not entitled to claim a right to benefits which had been established on the basis of an erroneous and subsequently revoked decision of an administrative authority.

They argued that if social security decisions were to benefit from the protection of a strictly applied principle of res judicata, administrative authorities would have no possibility to correct their decisions not to grant benefits to persons who were legitimately entitled to receive them.

Lastly, the Government observed that even if applied in the case of a social security decision, the principle of legal certainty, as defined in the Court's case-law, should not prevent a domestic authority from revoking an administrative decision by which a welfare authority had erroneously granted a never-existing right to a pension. Such revocation should be regarded as a legitimate departure from the principle of legal certainty.

2.  The Court's assessment

It follows that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B.  As regards the alleged unfairness of the proceedings

However, pursuant to Article 35 § 3 of the Convention:

“The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded ...”

The applicant failed to submit any evidence that the national judicial authorities had in any way breached her rights or reached arbitrary conclusions. The national courts held hearings on the merits of the case, heard statements from all necessary witnesses, including the applicant, and examined and assessed all the evidence before them, including the medical records of the applicant's child submitted by both parties and the reports of an independent medical expert. Moreover, the factual and legal reasons for the national courts' findings were set out at length in the judgments of the Regional Court of 26 February 2003 and the Court of Appeal of 16 October 2003, as well as in the judgment of the Supreme Court of 7 May 2004. In their judgments the national judicial authorities gave a very persuasive and detailed analysis of all the relevant circumstances of the case and provided relevant and sufficient reasons for their decisions (see paragraphs 15-24 above).

III.  ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION

A.  As regards the loss of the “EWK” pension

This complaint falls to be examined under Article 8 of the Convention, which in its relevant part reads as follows:

“1.  Everyone has the right to respect for his private and family life...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1.  The parties' submissions

(a)  The applicant

(b)  The Government

The Government also stated that a right to work was not guaranteed by the Convention. In any event, there was no link between the decision divesting the applicant of her early-retirement pension and the fact that she stood little chance of finding a new job.

2.  The Court's assessment

In these circumstances, the Court accepts that divesting the applicant of the “EWK” pension must constitute an interference with her right to respect for her family life, given that the measure in question entails severe consequences for the quality and enjoyment of the applicant's family life and necessarily affects the way in which the latter is organised (see Petrovic v. Austria, 27 March 1998, § 27, Reports of Judgments and Decisions 1998 II).

It follows that the instant complaint falls within the scope of Article 8 of the Convention. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  As regards the domestic proceedings

IV.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1

This complaint falls to be examined under Article 14 of the Convention, in conjunction with Article 1 of Protocol No. 1 to the Convention.

Article 14 of the Convention 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.”

Even if there had been a difference in the treatment of “EWK” pensioners in the Podkarpacki region, and particularly the applicant, the Court observes that it cannot be excluded that such difference may have resulted from the more efficient practices implemented by the local social security authority for verifying pension applications as compared to other regions. In particular, there is no evidence which would indicate that persons in receipt of the “EWK” pensions in the Podkarpacki region were deliberately targeted by the State authorities.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“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

1.  Pecuniary damage

The applicant also claimed 25,000 Polish zlotys (PLN) in respect of non pecuniary damage.

B.  Costs and expenses

JOINT PARTLY DISSENTING OPINION OF JUDGES BRATZA, HIRVELÄ AND BIANKU