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FOURTH
SECTION
CASE OF IWASZKIEWICZ v. POLAND
(Application
no. 30614/06)
JUDGMENT
STRASBOURG
26 July
2011
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 Iwaszkiewicz v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30614/06) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Polish nationals, Ms Klara Iwaszkiewicz and
Ms Maria Iwaszkiewicz (“the applicants”), on 19 July
2006.
- The
applicants, who had been granted legal aid, were represented by Mr Z.
Kozera, a lawyer practising in Zduńska Wola. The Polish
Government (“the Government”) were represented by their
Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicants alleged that the decisions given in their case breached
their right to a fair hearing and their right to the peaceful
enjoyment of their possessions.
- On
4 December 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1947 and 1987 respectively and live in
Zapolice.
- In
1990 the first applicant’s husband and the second applicant’s
father, Mr Henryk Iwaszkiewicz, born in 1929, was granted a
retirement pension under a regular retirement pension scheme and on
the strength of premiums which he had been paying into the
centralised social insurance fund. In 1997 he requested the Zduńska
Wola Social Insurance Authority (Zakład Ubezpieczeń
Społecznych) to grant him a disability pension, together
with so-called “veteran status” (“uprawnienia
kombatanckie” - see paragraphs 17 to 21 below) since from
1940 to 1946 he had been imprisoned, together with his parents, in a
labour camp in Siberia in the Soviet Union. Subsequently, Mr
Iwaszkiewicz underwent a medical examination.
- On
17 December 1997 the Zduńska Wola Social Insurance Authority
conferred veteran status on the applicant which entitled him to a
veteran’s disability pension. It found, on the basis of the
results of his medical examination, that his ill-health had been
caused by his deportation and imprisonment by the Soviet authorities
in the 1940s.
- Apparently
in 2001 and 2002 doubts arose as to the accuracy of certain medical
examinations, on the basis of which social insurance benefits had
been granted by the Zduńska Wola Social Insurance Authority. By
a letter of 24 October 2002 the Sieradz Regional Prosecutor requested
that Authority to review, under section 114 of the Law of 17 December
1998 on retirement and disability pensions (ustawa o emeryturach i
rentach z systemu ubezpieczeń społecznych - see
paragraph 22 below), the final decisions issued in 115 disability
pension cases. The request referred to a pending investigation in the
case of a certain J.S. and other doctors who had been assessing
claimants’ health for the purposes of social insurance
proceedings. The prosecutor submitted that it was highly likely that
in those cases serious irregularities concerning the assessment of
the claimants’ eligibility for social insurance benefits had
occurred. The list of cases attached to that request included Mr
Iwaszkiewicz’s case. No allegation was ever made that the 1997
decision had been obtained by Mr Iwaszkiewicz in a fraudulent
manner.
- In
December 2002 Mr Iwaszkiewicz was invited to undergo a fresh medical
examination. After that examination the Zduńska Wola Social
Insurance Authority, by a decision of 5 March 2003, withdrew his
veteran’s disability pension, referring to the doctors’
conclusions. They found that there had been no causal link between
his deportation by the Soviet authorities and the health problems
from which he suffered. From that date onwards his status was
again covered by the regular social insurance scheme and he was
entitled to an ordinary disability pension.
He
appealed against that decision to the Łódź Regional
Court.
- During
the ensuing judicial proceedings, Mr Iwaszkiewicz was examined on
10 June 2003 by a cardiologist and on 24 June 2003 by a
psychiatrist. According to their opinions, he suffered from numerous
serious ailments and he was completely unable to work. However, they
concurred that his ailments had been caused by his age and not by his
earlier deportation and imprisonment.
- On
27 November 2003 Mr Iwaszkiewicz died. The applicants joined the
proceedings as his legal successors under the provisions of domestic
law which expressly allowed them to seek payment of his pension
covering the period from the date of the contested decision until the
plaintiff’s death, and which gave them locus standi in
the proceedings (see paragraph 26 below). The applicants sought
payment of Mr Iwaszkiewicz’s veteran’s disability pension
from 5 March 2003 until his death on 27 November 2003 and challenged
the decision divesting him of his veteran’s status and of his
veteran’s disability pension.
- On
6 August 2004 the Łódź Regional Court dismissed
their appeal against the decision of 5 March 2003. The court had
regard to the medical experts’ opinions and findings. It held
that in the absence of a causal link between Mr Iwaszkiewicz’s
deportation in the 1940s and his medical condition in 2002, he did
not meet the requirements for veteran’s status laid down in
section 12 (3) of the Law of 24 January 1991 on Veterans and Victims
of War and Post-War Persecutions (Ustawa o kombatantach
oraz niektórych osobach będących ofiarami represji
wojennych i okresu powojennego - the (“the
1991 Law,” see paragraph 18 below).
- The
applicants appealed. They submitted that the first-instance judgment
was in breach of the applicable laws, in that the court had wrongly
and illogically accepted that a medical assessment finding a causal
link between the claimant’s health and his or her suffering in
the past, on the strength of which veteran’s status and a
veteran’s disability pension had been granted, could later be
reversed. The existence of a causal link was not something that could
reasonably change over time.
- Furthermore,
Mr Iwaszkiewicz had considerably aged between 1997 and 2002 and his
health had seriously deteriorated throughout that time. The medical
examination carried out in 2002 could not therefore assess the link
between the deportation and his health at the time when he applied
for veteran’s status, the existence of such a link being
decisive for entitlement to that status to arise. The applicants
argued that there was no legal basis on which to challenge the
medical assessment made during the examination of Mr Iwaszkiewicz’s
original request for a veteran’s pension in 1997, as this
pension had been granted by way of a final decision of the Social
Insurance Authority. The contested decision of 5 March 2003 had also
violated the principle that acquired rights should not be taken away.
- On
10 May 2005 the Łódź Court of Appeal dismissed the
applicants’ appeal, sharing the conclusions of the lower court.
- On
28 March 2006 the Supreme Court refused to entertain the applicants’
cassation appeal. On 10 April 2006 the applicants requested the court
to serve on them the written grounds for that refusal, to no avail.
II. RELEVANT DOMESTIC LAW
A. The Constitution
- Article
2 of the Constitution of Poland, which entered into force on 17
October 1997, reads:
“The Republic of Poland shall be a democratic
State ruled by law and implementing the principles of social
justice.”
B. Veteran status of persons deported to the Soviet
Union during the Second World War and afterwards
- Under
the provisions of the Law of 24 January 1991 on Veterans and Victims
of War and Post-War Persecutions (Ustawa o kombatantach oraz
niektórych osobach będących ofiarami represji
wojennych i okresu powojennego - “the 1991 Law”),
veterans are entitled to privileged status in comparison with other
employees or retired persons. This status includes, for example, a
lower age of retirement and various financial benefits paid in
addition to the normal pension calculated in accordance with the
rules of the general social insurance system. In particular, an
especially favourable method for calculating periods of employment is
used in respect of veterans.
- At the time when the applicant was divested of his
“veteran status”, a retired veteran was, inter alia,
entitled to a “veteran’s benefit” equal to 10% of
the average monthly salary in the public sector; a fare discount of
50% on travel by municipal transport, rail and public long-distance
buses; a special allowance covering 50% of such household expenses as
electricity, gas and heating; and a discount of 50% on motor-vehicle
insurance.
- Section
4 (3) (b) of the 1991 Law provides that its provisions also apply to
persons who have been subjected to forced deportation to the Soviet
Union during the Second World War and afterwards.
- Under
section 12 (1) of the 1991 Law, veterans who have acquired the status
of war or military invalids (that is to say, who have been declared
unfit for work and whose ailments have been caused by, inter alia,
deportation in conditions provided for by section 4 (3) (b) of the
1991 Law) are entitled to receive benefits defined in the 1974 Law on
War and Military Invalids (ustawa o zaopatrzeniu inwalidów
wojennych lub wojskowych – “the 1974 Law”)
including, in particular, veteran’s disability pension (renta
inwalidy wojennego). Pursuant to section 12 (2) of the 1991 Law,
certain family members, including widows and widowers aged over
fifty, those who are invalids themselves and those who raise children
under sixteen years of age, and also certain categories of children,
are entitled to certain benefits provided for by the 1974 Law. In
particular, the 1974 Law provides that they are entitled to family
benefit (renta rodzinna). At the material time, if there were
two family members eligible for that benefit, it was to be paid to
them in the amount of 80% of a basic amount of 1,175 Polish
złotys (PLN).
- Under
section 26 of the 1991 Law, a person divested of veteran’s
status retains an entitlement to his or her pension calculated under
the rules applicable to the general social insurance scheme.
C. Limitations on the reopening of proceedings
concerning final decisions on social insurance benefits
- Section
114 of the Law of 17 December 1998 on retirement and disability
pensions paid from the Social Insurance Fund (ustawa o emeryturach
i rentach z systemu ubezpieczeń społecznych –
“the 1998 Law”), applicable from 1 January 1999 until
1 July 2004, read:
“The right to benefits or the amount of benefits
will be reassessed 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.”
- The
Katowice Court of Appeal, in a judgment of 30 May 2001 (II AUa
2508/00), held that the provisions of the social insurance
legislation, in particular section 114 of the 1998 Law, allowed for
the reopening of proceedings terminated by a final decision awarding
a benefit only where new evidence or circumstances pre-existing prior
to that decision came to light after that decision had become final.
- The
same court, in a judgment of 10 July 2003 (III AUa 1512/03), held
that the legal impossibility of applying section 114 in situations
where benefits had been awarded, despite the eligibility conditions
not having been satisfied, would have been tantamount to endorsing
decisions issued in manifest breach of substantive law.
- The
Supreme Court held on 8 July 2005 (I UK 11/05) that in the context of
social insurance proceedings the principle of res judicata
operated differently than in the context of judicial decisions in
civil cases, in a manner which limited its practical significance.
Judicial decisions given in such proceedings established legal
relationships between the insured person and the insurance system on
the basis of the situation existing when such decisions were given.
New developments, relevant to the question of compliance with the
eligibility requirements, could justify changes in these legal
relationships.
D. Status of next-of-kin in proceedings concerning
social insurance benefits after a claimant’s death
- The
Law of 13 October 1998 on the social insurance system (Ustawa
o systemie ubezpieczeń społecznych), in its section
136, provides that if a person entitled to receive social insurance
benefits provided for by that law dies, the benefits due until the
date of his or her death are to be paid to his or her spouse and
children living in the same household.
- It
further provides that the affected spouse and children have a right
to participate in the proceedings concerning eligibility for social
insurance benefits if the claimant died whilst they are pending.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicants complained that their respective husband and father had
been divested of his veteran’s disability pension. They relied
on Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Court notes that this complaint 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’ arguments
- The
applicants submitted that the impugned decisions had breached Mr
Iwaszkiewicz and their own rights guaranteed by Article 1 of Protocol
No. 1 in that his entitlement to his veteran’s disability
pension had been discontinued. This breached the principle that
acquired rights should not be taken away.
- The
applicants argued that their legal predecessor had been deprived of
the rights originating in a final decision of the Social Security
Board which granted him the veteran’s status. This reversal had
been effected not because any circumstances had come to light,
pre-existing that decision, given in 1997, which might have justified
the taking away of his special rights. It had been done merely
because the authorities found it expedient to re-examine the issue of
the causal link between his health and his deportation to the Soviet
labour camp. The applicants submitted that the 1997 decision had been
final and should therefore have remained intact. Furthermore, the
existence of the causal link was of an objective character. If it was
found to exist in 1997, there were no reasonable grounds on which to
consider that it had ceased to exist in 2002, when the applicant was
examined by the doctors again and when his condition had considerably
deteriorated since 1997.
- The
Government argued that in the Polish legal system the principle of a
citizen’s confidence in the State was based on the principle of
legal certainty enshrined, according to the case-law of the
Constitutional Court, in Article 2 of the Constitution. The principle
of legal certainty presupposed that legal rules had
to be clear and precise so as to make it possible for citizens to
understand what their rights and obligations were and to foresee the
legal consequences of their conduct. They had to have
certainty that the legislature would not change the existing
regulations in an arbitrary manner. However, legal security and
certainty were not absolute values.
- Under
the case-law of the Polish courts, the principle of legal certainty
did not apply with the same force to decisions given by the Social
Insurance Authority as to final judicial decisions. The final
character of the former had been described by some courts as
“relative validity”. Furthermore, section 114 of the Law
on retirement and disability pensions (see paragraph 23 above)
allowed for final decisions conferring social insurance entitlements
to be verified, in proceedings instituted by the authorities of their
own motion, in certain narrowly defined situations. Such
re-examination could, in some instances, be to the benefit of persons
who had been wrongly refused certain entitlements.
- In
the present case the medical condition of the applicants’
respective husband and father had been reassessed at the request of
the prosecuting authorities, with reference being made to certain
decisions that had been obtained in a fraudulent manner. Neither the
recipient of the pension nor the applicants had challenged this
request.
- Under
the Polish system, claimants seeking the payment of social insurance
benefits had to meet the applicable conditions. The Court had
accepted in its case-law that in certain circumstances social
insurance benefits could be reduced. It was therefore permissible to
take measures in order to reassess the medical condition of persons
in receipt of disability pensions, provided that such reassessment
was in conformity with the law and attended by sufficient procedural
guarantees. In the applicants’ case the decision of the Social
Insurance Authority had been reviewed by the courts. There was no
indication that any procedural irregularities had occurred during
these proceedings.
- The Government submitted that the judgments of the
domestic courts given in the applicants’ case were based on
well-established and extensive case-law. The courts had conducted an
extensive examination of the evidence in the case and had explained
in detail their decisions to uphold the assessment of the Social
Insurance Authority. It was not the task of the Court to take the
place of the domestic courts, as it was in the first place for them
to interpret domestic law (Tejedor García v. Spain,
16 December 1997, § 31, Reports of Judgments and
Decisions 1997-VIII). Accordingly, the interference with the
applicants’ right to the peaceful enjoyment of their
possessions complained of in the present case was prescribed by law.
- They
further submitted that it was natural that the margin of appreciation
available to the legislature in implementing social and economic
policies should be a wide one and that the Court should respect the
legislature’s judgment as to what was “in the public
interest” unless that judgment was manifestly without
reasonable foundation (they referred to mutatis mutandis, The
former King of Greece and Others v. Greece [GC],
no. 25701/94, § 87, ECHR 2000-XII).
- In
the present case the interference complained of had the aim of
protecting the financial stability of the social insurance system and
ensuring that it was not threatened by subsidising pensions that were
not legitimate or that had been obtained as a result of errors,
negligence or other irregular situations. If as a result of such
errors, committed by the social insurance authorities, a person was
allowed to continue receiving benefits to which he or she was not
eligible as a matter of law, that person could not validly invoke the
rule of citizens’ confidence in the State referred to above
(see paragraph 32 above). The protection of acquired rights did not
include rights acquired in an unfair manner.
2. The Court’s assessment
(a) General principles
- The
Court first reiterates that Article 1 of Protocol No. 1 contains
three distinct rules. They have been described as follows (see James
and Others v. the United Kingdom, 21 February 1986, §
37, Series A no. 98, and also Belvedere Alberghiera
S.r.l. v. Italy, no. 31524/96, § 51, ECHR
2000 VI):
“The first rule, set out in the first sentence of
the first paragraph, is of a general nature and enunciates the
principle of the peaceful enjoyment of property; the second rule,
contained in the second sentence of the first paragraph, covers
deprivation of possessions and subjects it to certain conditions; the
third rule, stated in the second paragraph, recognises that the
Contracting States are entitled, amongst other things, to control the
use of property in accordance with the general interest ... The three
rules are not, however, ‘distinct’ in the sense of being
unconnected. The second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property and should therefore be construed in the light of the
general principle enunciated in the first rule.”
- Article 1
of Protocol No. 1 to the Convention does not guarantee, as such,
any right to a pension of a particular amount (see, for example,
Kjartan Ásmundsson v. Iceland,
no. 60669/00, § 39, ECHR 2004-IX, and Janković
v. Croatia (dec.), no. 43440/98, ECHR 2000-X). Where an
individual has an assertable right under domestic law to a
contributory social insurance pension, such a benefit should be
regarded as a proprietary interest falling within the ambit of
Article 1 of Protocol No. 1 for persons satisfying its
requirements (see Stec and Others v. the United Kingdom (dec.)
[GC], nos. 65731/01 and 65900/01, ECHR 2005 X). Where the
amount of a benefit is reduced or discontinued, this may constitute
an interference with possessions which requires justification (see
Kjartan Ásmundsson, cited above, § 40, and
Rasmussen v. Poland,
no. 38886/05, § 71, 28 April
2009).
- An
essential condition for an interference to be deemed compatible with
Article 1 of Protocol No. 1 is that it should be lawful. The
rule of law, one of the fundamental principles of a democratic
society, is inherent in all the Articles of the Convention (see
Iatridis v. Greece [GC], no. 31107/96, § 58,
ECHR 1999-II).
- A lawful interference by a public authority with the
peaceful enjoyment of possessions can only be justified if it serves
a legitimate public (or general) interest. Because of their direct
knowledge of their society and its needs, the national authorities
are in principle better placed than the international judge to decide
what is “in the public interest”. Under the system of
protection established by the Convention, it is thus for the national
authorities to make the initial assessment as to the existence of a
problem of public concern warranting measures interfering with the
peaceful enjoyment of possessions (see, among many other authorities,
Stec and Others v. the United Kingdom (dec.) [GC], nos.
65731/01 and 65900/01, § 52). The notion of “public
interest” is necessarily extensive. In particular, the decision
to enact laws concerning social insurance benefits will commonly
involve consideration of economic and social issues. The Court finds
it natural that the margin of appreciation available to the
legislature in implementing social and economic policies should be a
wide one and will respect the legislature’s judgment as to what
is “in the public interest” unless that judgment is
manifestly without reasonable foundation (see, mutatis mutandis,
The former King of Greece and Others, cited
above, § 87 and Wieczorek v. Poland, no. 18176/05, §
59, 8 December 2009).
- Article 1
of Protocol No. 1 also requires that any interference be
reasonably proportionate to the aim sought to be realised (see Jahn
and Others v. Germany [GC], nos. 46720/99, 72203/01 and
72552/01, §§ 81 94, ECHR 2005 VI).
Consequently, an interference must achieve a “fair balance”
between the demands of the general interest of the community and the
requirements of the protection of the individual’s fundamental
rights. The requisite fair balance will not be struck where the
person concerned bears an individual and excessive burden (see
Sporrong and Lönnroth v. Sweden, 23 September
1982, §§ 69-74, Series A no. 52).
(b) Application of the above principles in
the present case
- In
the present case Mr Iwaszkiewicz was entitled, on the basis of the
decision of the Social Insurance Authority given on 17 December 1997,
to a veteran’s disability pension, with special privileges
attached to it. Pursuant to the decision of the same Authority given
on 5 March 2003, he was divested of that status and of the benefits
linked thereto. After Mr Iwaszkiewicz’s death on 27
November 2003, the applicants were entitled as a matter of law to
pursue the proceedings on their own behalf and to seek payment of the
pension due for the period between the date of the contested decision
and his death.
- The
Court further notes that the outcome of the proceedings referred to
above had a bearing on the applicants’ own situation as it was
decisive for the existence of their own claim to benefits due to
families of persons who had acquired the status of war invalids
within the meaning of the 1974 Law on War and Military Invalids and
the 1991 Law on Veterans and Victims of War (see paragraph 22 above).
It follows that in the circumstances of the case considered as a
whole, the Court finds that the applicants may be regarded as having
a substantive interest protected by Article 1 of Protocol No. 1 to
the Convention.
As a
result of the decisions complained of the applicants were divested of
their social insurance entitlements. Hence, the decisions given in
the judicial proceedings, taken together, amounted to an interference
with the applicants’ right to the peaceful enjoyment of their
possessions within the
meaning of Article 1 of Protocol No. 1 to the Convention (see
Wieczorek v. Poland, cited above, § 61).
- The
Court must next determine whether the interference was lawful. The
measure complained of was based on section 114 of the 1998 Law, which
at the relevant time provided that the right to benefits awarded by
final decisions could in certain circumstances be reassessed by the
authorities of their own motion (see paragraph 23 above). The Court,
in deference to the findings of the domestic courts, has already
accepted that the reopening of proceedings on the basis of that
provision, following the discovery of the welfare authority’s
own mistake in its original assessment of the eligibility for a
benefit, was provided for by law (see Moskal v. Poland, no.
10373/05, §§ 55-56, 15 September 2009). It sees no grounds
on which to reach a different conclusion in the present case.
- The
Court must next determine whether the interference pursued a
legitimate aim, that is, whether it was “in the public
interest”. The Court considers that its aim was to protect the
financial stability of the social insurance system and to ensure that
it was not threatened by the subsidising of pensions of recipients
who had acquired them on the basis of superficial, erroneous or
fraudulently obtained medical assessments (see Moskal v. Poland,
cited above, §§ 61-63 and Wieczorek v. Poland, cited
above, § 63).
- Lastly,
the Court is called upon to ascertain whether the interference
imposed an excessive individual burden on the applicants. In
considering whether this is the case, the Court must have regard to
the particular context in which the issue arises in the present case,
namely that of a social security scheme. Such schemes are an
expression of a society’s solidarity with its vulnerable
members (see Goudswaard-Van der Lans v. the Netherlands
(dec.), no. 75255/01, ECHR 2005 XI). The Court’s
approach to Article 1 of Protocol No. 1 should reflect the
reality of the way in which welfare provision is currently organised
within the member States of the Council of Europe. It is clear that
within those States, and within most individual States, there exists
a wide range of social security benefits designed to confer
entitlements which arise as of right. Benefits are funded in a large
variety of ways: some are paid for by contributions to a specific
fund; some depend on a claimant’s contribution record; many are
paid for out of general taxation on the basis of a statutorily
defined status. In the modern, democratic State, many individuals
are, for all or part of their lives, completely dependent for
survival on social security and welfare benefits. Many domestic legal
systems recognise that such individuals require a degree of certainty
and security, and provide for benefits to be paid subject
to the fulfilment of the conditions of eligibility – as of
right (see Stec and Others, cited above). Article 1 of
Protocol No. 1 places no restriction on the Contracting Parties’
freedom to choose the type or amount of benefits to provide under
social security schemes (see Stec and Others, cited above).
- The
Court observes that entitlement to a veteran’s disability
pension is based essentially on the claimant’s inability to
continue paid employment on the grounds of ill-health caused by his
or her imprisonment or persecution in the past by the communist,
Soviet or Nazi authorities in conditions defined in the 1991 Law (see
paragraph 21 above). It is paid from a single social insurance fund
financed by various compulsory contributions from employees and
employers and managed by the Social Insurance Authority. It operates
on a pay-as-you-go basis. Having regard to the fact that that fund is
based on the principle of solidarity, the Court cannot accept that
such a pension should at all times remain unaltered once it has been
granted by way of a final decision given by the Social Insurance
Authority.
- There
is no authority in the Court’s case-law for so categorical a
statement; in actual fact, the Court has accepted the possibility of
reductions in social security entitlements in certain circumstances
(see, as a recent authority, Kjartan Ásmundsson, cited
above, § 45, with further case-law references; see also
Hoogendijk v. the Netherlands, (dec.), no. 58641/00,
6 January 2005; Wieczorek v. Poland, cited above, §
67; and Rasmussen v. Poland, cited above, § 71). It is
permissible for States to take measures to reassess the medical
condition of persons receiving disability pensions with a view to
verifying whether they continue to meet the relevant eligibility
requirements, provided that such reassessment is in conformity with
the law and attended by sufficient procedural guarantees. Indeed, had
entitlements to disability pensions been maintained regardless of
recipients’ eligibility, it would have been unfair on persons
contributing to the social insurance system, in particular those
denied benefits as they did not meet the relevant requirements. In
more general terms, it would also sanction an improper allocation of
public funds, in disregard of the objectives that disability pensions
were intended to meet and in breach of the principle of solidarity.
- The
Court notes that the applicants’ respective husband and father
was found in 1997 to meet the legal requirements for veteran status
on the basis of his general medical condition, and was declared to
satisfy the conditions required for disability status. It was also
established at that time that his condition had been caused by his
six-year period of imprisonment in a Soviet labour camp.
Subsequently, in 2002, he was examined again because the Social
Insurance Authority had been informed by the local prosecutors that
investigations had given rise to suspicions that certain medical
certificates issued in the region serving as the basis for the
acquisition of disability pensions had been issued fraudulently.
Mr Iwaszkiewicz’s condition was consequently re-examined.
It was found, contrary to the original medical assessment, that there
had been no causal link between his imprisonment in the 1940s by the
Soviet authorities and his medical condition.
- The
Court does not consider that such a decision aimed at the
re-examination of persons who had been examined in the past for the
purposes of granting social insurance benefits, by doctors in respect
of whom there was a suspicion of a lack of diligence was arbitrary or
otherwise unreasonable. It notes that the prosecuting authorities
expressed suspicions of large-scale fraud in the context of the
investigation into many cases decided by the Zduńska Wola Social
Insurance Authority. Hence, the decision to re-assess certain
benefits cannot be said to be without a reasonable foundation.
- The
Court further notes that the veteran’s disability pension was
not granted to the applicant by a final judicial decision, but by a
decision given by the Social Insurance Authority. The Court has
already held that the principle of legal certainty applies to a final
legal situation, irrespective of whether it was brought about by a
judicial act or an administrative act or, as in the instant case, a
social insurance decision which, on the face of it, is final in its
effects (see Moskal v. Poland, cited above, § 82).
However, in its assessment of the case the Court cannot overlook the
position of the Polish Supreme Court, which held that in the context
of social insurance proceedings, the principle of res judicata
operated differently from in the context of final judicial decisions
in civil cases. The Court considers this position to be compatible
with the character and purposes of social insurance proceedings and
substantive law, which is intended to be sufficiently flexible to
address genuine needs of insured persons, needs which can evolve and
change over time.
- The
Court is furthermore of the view that it would
upset any fair balance if, having discovered their mistake, the
authorities were precluded from ever redressing its effects and were
required to perpetuate the error by continuing to pay a pension which
had been granted on the basis of erroneous grounds.
- The
Court further observes that the Social Insurance Authority invited Mr
Iwaszkiewicz to undergo a fresh medical examination for the purpose
of re-assessment of his situation (see paragraph 9 above).
Subsequently, in the context of judicial proceedings he was examined
by two doctors (see paragraph 10 above). Hence, in the present case
the challenged decision to take away his veteran’s status was
not based merely on a new assessment of the evidence accompanying the
original application for a pension, but on updated medical evidence
taken specifically for the purposes of the re-examination of the
applicant’s entitlement to the veteran’s status.
- Furthermore,
in the present case it has not been argued or shown that the
applicants’ means of subsistence were at stake. The
circumstances of the case therefore fundamentally differ from those
examined by the Court in another case against Poland where the
applicant was, as a result of the discontinuance of her benefit,
faced practically from one day to the next with the total loss of her
early retirement pension, which constituted her sole source of income
(compare and contrast Moskal, cited above, § 74). In
the present case it has not been argued, let alone shown, that the
amounts and benefits concerned in the proceedings were the
applicants’ sole source of income. Moreover, the Court attaches
importance to the fact that the social insurance benefits enjoyed by
Mr Iwaszkiewicz originated from a privileged status which has been,
and still is, perceived as a special honour (see Domalewski v.
Poland (dec.), no. 34610/97, ECHR 1999 V and Skórkiewicz
v. Poland (dec.), no. 39860/98, 1 June 1999). Hence, it cannot be
said that in the circumstances of this case the applicants were
totally divested of their only means of subsistence (compare and
contrast Kjartan Ásmundsson, cited above, § 44,
and the case-law cited therein).
- The
Court considers that in its assessment of the proportionality of the
interference complained of it cannot be overlooked that the
applicants were not the original recipients of the veteran’s
pension.
- The
Court further notes that the social insurance authorities, when
delivering their decision of 5 March 2003, divested Mr Iwaszkiewicz
of his veteran status, but held that from that date on he was
entitled to an ordinary disability pension. Thus, in so far as the
applicants complained about his situation resulting from this
decision, at no time was he left without provision from the social
insurance system (compare and contrast Moskal, cited above, §
75, where the applicant’s right to a new benefit was recognised
only after three years). Nor was it argued that the applicants
themselves were, as a result of the contested decisions, left without
provision.
- The
Court observes that at no time was Mr Iwaszkiewicz obliged to pay
back any amounts which he had received prior to the date when he was
found to no longer meet the applicable legal requirements. Nor were
the applicants required to pay back any amounts which their
respective late husband and father had received (see Chroust
v. the Czech Republic (dec.), no. 4295/03, 20 November
2006). Moreover, the domestic law did not create any assumption that
persons who had been found, after a certain lapse of time, not to
satisfy the requirements for veteran’s disability pension had
in fact acquired such by acting fraudulently or in a manner open to
criticism, despite the fact that the prosecuting authorities had
instituted an investigation in respect of charges of bribery
concerning certain doctors working for the Social Insurance
Authority. Nor was such a suggestion made in the proceedings in
relation to the applicants themselves, or to their respective late
husband and father.
- The
Court observes that the decisions of the Social Insurance Authority
were subject to judicial review before the special social insurance
courts at two levels, attended by full procedural guarantees. There
is no indication that during the proceedings Mr Iwaszkiewicz or the
applicants themselves were unable to present their arguments to the
courts.
- Having
regard to the circumstances of the case seen as a whole, the Court
concludes that a fair balance was struck between the demands of the
general interest of the public and the requirements of the protection
of the individuals’ fundamental rights and that the burden on
the applicants was neither disproportionate nor excessive.
- There
has therefore been no violation of Article 1 of Protocol No. 1 to the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants also complained that the ex-officio re-opening of
the social security proceedings, which had resulted in the quashing
of the final decision granting their legal predecessor a right to a
pension, was in breach of Article 6 § 1 of the
Convention.
- Article
6 § 1 of the Convention reads, as relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Court notes that this complaint 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.
- The
Government submitted that the legal character of decisions delivered
by the Social Insurance Authority had been analysed in detail by the
Polish courts. The Supreme Court had held that the principle of res
judicata in the sphere of social insurance had a special quality
(see paragraph 26 above).
- Consequently,
the Government argued, the social insurance authorities had to have
the possibility of challenging final decisions, provided by section
114 of the 1998 Law (see paragraph 23 above). This provision
carefully circumscribed the situations in which the re-examination of
previously issued decisions would be possible. Hence, the margin of
appreciation of the administrative authorities in regard to the
reopening of proceedings aimed at the verification of certain
decisions was limited in two ways: firstly, by the existence of
provisions which offered very limited scope for the reopening of
proceedings, and secondly, by the fact that an appeal to a court was
available to the concerned parties.
- The
Court is of the opinion that this complaint is essentially a
restatement of the complaint examined above under Article 1 of
Protocol No. 1.
- Having regard to its finding in relation to that
provision, in particular that it was open to the authorities to
reassess Mr Iwaszkiewicz’s entitlement to a veteran’s
pension and that such reassessment was not precluded by the principle
of legal certainty (see paragraphs 53-59 above), the Court considers
that the applicants’ complaint under Article 6 § 1 does
not require a separate examination on the merits.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicants complained under Article 3 of the Convention that Mr
Iwaszkiewicz, had been subjected to inhuman treatment since the
domestic authorities had deprived him of his veteran’s pension.
They further complained that the domestic courts had delivered a
decision concerning another person in a comparable situation, whose
special rights under the veteran status provisions, by contrast, had
ultimately been upheld. The applicants complained under Article 13 of
the Convention that they had been deprived of an effective remedy in
that the domestic courts had dismissed all their appeals. They
further complained under Article 2 of Protocol No. 1 that the
courts had infringed the second applicant’s right to education
by depriving her of an additional source of income.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the decisions
pertaining to Mr Iwaszkiewicz’s veteran’s disability
status admissible and the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 1 of Protocol No. 1 to the Convention;
- Holds that there is no need to examine the
complaint under Article 6 § 1 to the Convention.
Done in English, and notified in writing on 26 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
