CASE OF CZYŻ v. POLAND
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney
5. The applicant was born in 1953 and lives in Mielec. 6. The applicant is married and has three children. Prior to her early retirement she had been employed and had paid her social security contributions to the State. 7. On 25 October 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) 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. 8. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist doctor on 8 October 2001. The certificate stated that the child (born in 1992) suffered from chronic asthma and that she was in need of her parent’s constant care. 9. On 6 December 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an early retirement pension. 10. The Social Security Board suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. 11. On 30 June 2002 the applicant’s employment was dissolved by a mutual consent of the parties. 12. Consequently, on 29 July 2002 the Rzeszów Social Security Board decided to start payment of the retirement pension starting from 1 August 2002. 13. On 17 July 2002 the Rzeszów Social Security Board had asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 14. On 30 July 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. 15. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. It follows that the applicant was never paid the pension. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early retirement pension under the scheme provided for by the 1989 Ordinance. 16. The applicant appealed against the respective decisions 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 the original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 17. On 29 December 2003 the Rzeszów Regional Court dismissed the applicant’s appeal. 18. The applicant appealed against the first-instance judgment. 19. On 2 June 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she had not satisfied the requirement of necessary permanent care. 20. A professional lawyer, who had been either hired by the applicant or appointed to represent her under a legal-aid scheme, prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf. 21. On 14 December 2004 the Supreme Court refused to examine the cassation appeal. 22. The applicant’s pension was revoked one day before the planned first payment. It follows that she never received any payment of the granted early retirement. 23. According to the Government’s submissions, after the revocation of her pension, the applicant worked between 16 December 2004 and 31 May 2005 on the basis of a civil law contract. On 31 May 2005 she started working on the basis of an employment contract and she is still working on a permanent basis. 24. The Government also submitted that the applicant’s gross annual income amounted to approx. 39% of the average brut salary in Poland in 2002 (10,063 Polish zlotys [PLN], approx. 2,472 euros [EUR]), 0.41% in 2004 (PLN 112, approx. EUR 25), 27% in 2005 (PLN 7,754, approx. EUR 1,929), 36% in 2006 (PLN 10,739, approx. EUR 2,760), 35% in 2007 (PLN 11,951, approx. EUR 3,162), 40% in 2008 (PLN 14,476, approx. EUR 4,124), 76% in 2009 (PLN 28,471, approx. EUR 6,590) and 77% in 2010 (PLN 7,610, approx. EUR 1,907). In 2003 the applicant had no income. 25. Additionally, on 1 December 2008 the applicant became eligible for an early retirement pension not connected with the state of health of her child. The pension amounted to PLN 1,102 net (approx. EUR 263). It follows that as of 1 December 2008 the applicant’s income consisted of both her salary and the early retirement pension. 26. The applicant submitted that she could not terminate her employment contract earlier than on 30 June 2002 because she had to train a new employee who would replace her at work and because of her financial commitments towards the employer. As regards her financial situation she submitted that the income in the period directly following the revocation of her pension and the following two years was “close to zero”. She also submitted a copy of the decision of 20 December 2004 issued by the Mielec Social Care Centre (Ośrodek Pomocy Społecznej) granting her a social care benefit for persons whose income per family member fell below the statutory threshold; according to the reasoning of the decision the applicant’s family’s income at the relevant time amounted to PLN 934.84 (approx. EUR 206); the income per member of the applicant’s family thus amounted to PLN 186.97 (approx. EUR 41). At the relevant time the threshold which enabled the applicant to claim the social care benefit was PLN 316 (approx. EUR 70) of income per family member. 27. The applicant further submitted two calls for payment addressed to her and issued by the Mielec Housing Cooperative on 18 September 2002 and on 19 May 2005 confirming that she had debt resulting from unpaid rent which amounted to PLN 1,656.65 (approx. EUR 407) and PLN 2,124.86 (approx. EUR 525) respectively. 28. The Government also submitted that the applicant’s husband had worked between 7 May 1999 and 29 March 2004, that her son W.C. had worked between 7 April 2000 and 31 December 2002 and her other son T.C. had worked as an adolescent employee between 1 January 1999 and 30 June 2001 and, subsequently, on the basis of an employment contract as of 18 August 2008.