ZIMA v. POLAND
Inadmissible
Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Ms Janina Zima, is a Polish national, who was born in 1960 and lives in Ropczyce. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarized as follows. 4. On 28 November 1997 the applicant filed an application with the Social Security Board (Zakład Ubezpieczeń Społecznych – “the SSB”) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 5. Along with her application for a pension, she submitted, among other documents concerning her son’s health, a medical certificate issued by a specialist doctor on 3 November 1997. The certificate stated that the child (born in 1988) suffered from hypothyroidism (niedoczynność tarczycy) and was in need of the parent’s constant care. 6. On 16 December 1997 the SSB issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 377 Polish zlotys (PLN) per month, starting from 1 November 1997. 7. The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and she continued to receive her pension without interruption until the date of the revocation of the right. 8. On 13 July 2009 the SSB reviewed the applicant’s pension application under section 114 (1a) of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych – “the 1998 Law”). 9. The SSB requested the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. On 15 July 2009 the doctor stated that, on the basis of the medical documents, the child in question could not be considered as ever having required such care. 10. On 17 July 2009 the SSB simultaneously issued two decisions in respect of the applicant. By virtue of the first decision, the payment of the applicant’s pension was discontinued starting from 1 August 2009. By virtue of the second decision, the Board revoked the initial decision of 16 December 1997 and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki – “the 1989 Ordinance”). 11. The applicant appealed against the above-mentioned decision divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to her original application for a pension. 12. On 2 December 2009 the Rzeszow Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. On the basis of a report on the state of health of the applicant’s child prepared by an expert in endocrinology the court found that the applicant’s son had not required, as of 28 November 1997, a constant care of his mother. It held that the proceedings had been reopened by the SSB in accordance with section 114 of the 1998 Law and the applicant had been rightfully divested of her right to an EWK pension. 13. On 10 February 2010 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against the first-instance judgment. It agreed with the first-instance courts’ findings of fact. As regards the reopening of the proceedings, it observed that the SSB had acted in accordance with section 114 of the 1998 Law. In that context, it referred, in particular, to paragraph 1a of this provision which explicitly allowed the SSB to reopen the proceedings if it came to light that the submitted evidence had not constituted sufficient grounds for the right to the pension to be established. It also noted that, in the applicant’s case, the proceedings had been reopened because new evidence had been obtained by the authority, namely the documents relating to the course of the child’s medical treatment. 14. The applicant did not lodge a cassation appeal with the Supreme Court (Sąd Najwyższy). 15. Nor did she lodge a request for the reopening of judicial proceedings in her case on the basis of the judgment of the Constitutional Court (Trybunał Konstytucyjny) of 28 February 2012 declaring section 114(1a) of the 1998 Law unconstitutional (see paragraphs 22-27 below). 16. The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of Moskal v. Poland, no. 10373/05, §§ 3134, 15 September 2009 and Antoni Lewandowski v. Poland, no. 38459/03, §§ 3643, 2 October 2012. 17. By virtue of the law of 20 April 2004 on amendments to the law of 1998 on retirement and disability pensions paid from the Social Insurance Fund and to certain other acts (Ustawa o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych oraz niektórych innych ustaw – “the 2004 Act”), which entered into force on 1 July 2004, a new paragraph 1a was added to section 114 of the law. The amended section 114 of the 1998 Law provided as follows: “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. 1a. Paragraph 1 applies if after the validation of the decision it comes to light that the submitted evidence did not constitute sufficient grounds for the right to the retirement pension or disability pension or for their amount to be established.” 18. On 5 June 2003, before paragraph 1a was added to section 114 of the 1998 Law, the Supreme Court adopted a resolution in which it held: “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.” 19. In a judgment given on 21 September 2010 (case no. III UK 94/09) the Supreme Court held that, when applying section 114(1) of the 1998 Law, the domestic courts should take into account the criteria set out in the Court’s judgment in the Moskal case. They should first establish whether the mistake in granting a social security benefit had been caused by the authorities themselves without any fault of the person concerned. In examining whether the social security authority was allowed to reopen the proceedings, they should also take into account the period of time that had elapsed from the date when the social benefit in question had been granted. When applying the provision of domestic law they should assess the proportionality of the consequences of the interference with an individual’s right to a social benefit. Accordingly, where the mistake had been caused by the authorities themselves and the revocation of the benefit would entail substantial negative consequences for an individual, the relevant decision should not be revoked. 20. In a judgment of 24 March 2011 (case no. I UK 317/10) the Supreme Court reiterated that the revocation of the right to a social security benefit following the reopening of the proceedings under section 114 of the 1998 Law should be assessed in the light of the criteria set out in the Court’s judgment in the Moskal case. In this connection the Supreme Court underlined that the European Convention on Human Rights constituted an integral part of the Polish legal system and that the domestic courts should therefore interpret the provisions of the domestic law in the light of the jurisprudence of the Court. 21. In a judgment of 5 April 2011 (case no. III UK 92/10) the Supreme Court held that section 114(1a) of the 1998 Law should not be interpreted as providing a separate legal basis for reopening of the proceedings concerning the grant of a social security benefit and should be read in conjunction with section 114(1). If this provision was to be understood as allowing the social security authority to reopen the relevant proceedings of its own motion merely on the basis of a new assessment of previously submitted evidence, it would have to be considered incompatible with the principle of the rule of law set forth in Article 2 of the Constitution. The Supreme Court considered that its interpretation of the provisions of the 1998 Law was further supported by the principles set out in the Moskal judgment of the Court. 22. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114(1a) of the 1998 Law to be declared unconstitutional. The Ombudsman argued that the impugned provision was unconstitutional in so far as it expressly allowed for an ex officio reopening of proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of the evidence which had already been submitted before the relevant authority. 23. On 28 February 2012 the Constitutional Court held that section 114(1a) of the 1998 Law was in breach of Article 2 (the principle of the rule of law) and Article 67 § 1 (the right to social security) of the Constitution. It found that, as the provision in question allowed for an unlimited re-assessment of evidence which constituted grounds for the initial decision concerning the entitlement to a social security benefit, it was in breach of the principle of the rule of law as set forth in Article 2 of the Constitution. 24. Furthermore, the Constitutional Court found that the provision in question did not strike a fair balance between the general interest and an individual’s right to social security under Article 67 § 1 of the Constitution. The court considered that an interference with individual rights guaranteed by Article 67, which pursued the aim of correcting the authority’s own mistake, could only be justified under exceptional circumstances. However, on the basis of the impugned provision the social security authority could, at any time and without any limitations, review the decision concerning a social security benefit by means of re-assessment of the evidence before it. 25. In the grounds for the ruling the Constitutional Court also referred to the Court’s Moskal judgment. It noted that this case had likewise concerned a revocation of the right to a social security benefit following the reopening of the social security proceedings, which had been, however, based on section 114(1) of the Law 1998 as section 114(1a) had not been in force at the material time. It further observed that the Court’s judgment had influenced the interpretation of section 114(1) of the 1998 Law by the Supreme Court (see paragraphs 19-21 above). 26. Lastly, with regard to the consequences of its ruling, the Constitutional Court noted that the breach of Constitution should be remedied by restoring the state of conformity with the law (wymaga przywrócenia stanu zgodnego z prawem). In that context, the Constitutional Court explicitly stated that the finding of unconstitutionality of section 114(1a) of the 1998 Law should be a ground for the reopening of proceedings in which final rulings had been based on this provision. 27. On 8 March 2012 the judgment was published in the Journal of Laws of the Republic of Poland (Dziennik Ustaw) and entered into force on that date. 28. Article 190 of the Constitution, in so far as relevant, provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court,... shall be published immediately. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act... 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final judicial decision, final administrative decision or ruling on other matters was given, shall be a basis for reopening proceedings, or for quashing the impugned decision or ruling in a manner and on principles specified in provisions applicable to the given proceedings.” 29. In accordance with Article 399 read in conjunction with Article 4011 of the Code of Civil Procedure (Kodeks Postępowania Cywilnego) a party to civil proceedings terminated by a final judgment may request that these proceedings be reopened, if the Constitutional Court has found that the normative act on the basis of which this judgment was given was incompatible with the Constitution. 30. Pursuant to Article 407 § 2, a request to that effect shall be lodged within three months from the date on which the judgment of the Constitutional Court has entered into force. Pursuant to Article 408 a request for the reopening of the proceedings must be lodged within five years from the date on which the final judgment has been given, unless the party could not act in the proceedings or was not properly represented. 31. Under Article 412 § 1 of the Code, a reopened case is to be examined within the limits determined by the grounds for the reopening. According to § 2 of this provision, after a fresh examination of the case, the court may either dismiss the request for reopening, or allow it and alter or quash the impugned judgment. If need be, it may reject the claim on formal grounds or discontinue the proceedings.