CASE OF LUCZAK v. POLAND
Violation of Art. 14+P1-1;Pecuniary and non-pecuniary damage - financial award (total);Costs and expenses partial award - Convention & domestic proceedings
Nicolas Bratza
8. The applicant, who is a French national of Polish origin, was born in 1950 and lived in Brzeg. 9. The applicant moved to Poland in about 1984. He was in employment for a number of years and consequently was affiliated to the general social security scheme. The relevant law governing it did not exclude the participation of foreign nationals in the general social security scheme. 10. On 20 January 1997 the applicant and his wife, who is a Polish national, jointly bought a farm. They took possession of it on 20 November 1997. At about that time the applicant terminated his employment and decided to make his living from the farm. 11. On 2 December 1997 the applicant requested the Częstochowa branch of the Farmers' Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego) to admit him to the farmers' social security scheme. 12. On 16 December 1997 his request was refused on the ground that he was not a Polish national, a condition stipulated in the Farmers' Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). As a result, the applicant did not have social security cover in the event of sickness, occupational injury and invalidity. In addition, he could not pay contributions towards his old-age pension. 13. In a decision given on the same date, the applicant's wife was admitted to the farmers' scheme. 14. The applicant appealed against the decision given in his case. He submitted that as a self-employed farmer he was exposed to the risk of work-related accidents. Furthermore, he argued that since he had acquired the farm he had terminated his previous employment and that the farm was intended to provide for his livelihood. The applicant also submitted that when previously employed he had been covered by the general social security scheme despite his foreign nationality. As a result of the refusal, he could not pay his social security contributions, so the relevant time would not be taken into account when calculating his future retirement pension. 15. He also submitted that he had been informed about an obligation to join the scheme by way of a clause in the notarial deed whereby he had acquired the farm. In addition, the applicant stated that he had been living in Poland for 18 years and that he had had a permanent residence permit for 15 years. He also referred to his Polish origin and his willingness to pay the relevant contributions to the scheme. 16. On 30 March 1998 the Częstochowa Regional Court dismissed the applicant's appeal, finding that the applicant could not be admitted to the farmers' social security scheme as he did not have Polish nationality. On the other hand, it observed that in the event of a serious occupational injury the applicant could be granted a one-off compensation payment as provided in section 10(1)(2) of the 1990 Act. As regards access to health services, the Regional Court noted that the applicant, as a foreign national permanently residing in Poland, would be provided with such access by a law which was to come into force on 1 January 1999. 17. The applicant appealed against that judgment. He submitted that the refusal to admit him to the social security scheme for farmers on the basis of his nationality was discriminatory. He alleged a breach of the principle of equality, relying on the Constitution and the International Covenant on Economic, Social and Cultural Rights (“the ICESC”). 18. On 22 December 1998 the Katowice Court of Appeal dismissed the applicant's appeal. It found that the applicant could not base his claim for admission to the farmers' social security scheme on the Constitution as the latter provided in Article 37 § 2 for statutory limitations on the rights of aliens. Similarly, the Court of Appeal held that the 1948 bilateral treaty concluded between France and Poland in matters of social security was applicable exclusively to employees. The applicant's claim based on the ICESC was also dismissed. The Court of Appeal noted that Article 9 of the ICESC included a provision on the right of everyone to social security. However, it held that the provisions of the Covenant were not self-executing and left States a margin of discretion as to the manner of their implementation in domestic law. 19. The applicant lodged a cassation appeal against that judgment with the Supreme Court. On 8 February 2000 the Supreme Court dismissed his cassation appeal, relying principally on the same grounds as the Court of Appeal. Additionally, it observed that Article 67 of the Constitution provided that the right to social security was guaranteed only to Polish nationals. 20. In 1998 the applicant requested the President of the Farmers' Social Security Fund to admit him to the farmers' scheme as an exception to the existing rules. On 7 August 1998 the President of the Farmers' Social Security Fund refused and informed the applicant that the 1990 Act expressly excluded the admission of non-Polish nationals to the scheme. That rule was applicable to farmers, their spouses and members of their household. 21. In 1998 the applicant petitioned the Ombudsman. On 16 September 1998 the Ombudsman wrote to the Minister of Agriculture, stating that discrimination on the ground of nationality in respect of the provision of social security to farmers was questionable in view of the obligations specified in the ICESC. He requested the Minister to urgently prepare a relevant amendment to the 1990 Act. On 30 September 1998 the Minister informed the Ombudsman that amendments were being prepared. Those amendments would enable farmers of foreign nationality having permanent residence status in Poland to join the farmers' scheme. It was envisaged that the amendments would enter into force on 1 January 1999. The applicant was informed of this by the Ombudsman. However, the amendments were not enacted. 22. In 2002, in view of the prolonged uncertainty as to his social security cover, the applicant went to the Netherlands, where he obtained a job. From April 2004 to April 2006 the applicant was on sick leave and subsequently he has been in receipt of a sickness allowance. 23. On 2 April 2004 the 1990 Act was amended in connection with Poland's accession to the European Union (EU). The amendments provided, inter alia, that nationals of EU Member States and foreign nationals in possession of a residence permit could join the farmers' scheme. 24. The European Social Charter 1961 (“the Social Charter”), which entered into force in respect of Poland on 25 July 1997, provides, as relevant: “The governments signatory hereto, being members of the Council of Europe, ... Considering that the enjoyment of social rights should be secured without discrimination on grounds of race, colour, sex, religion, political opinion, national extraction or social origin; ... Have agreed as follows: ...” “The Contracting Parties undertake, as provided for in Part III, to consider themselves bound by the obligations laid down in the following articles and paragraphs. ...” “With a view to ensuring the effective exercise of the right to social security, the Contracting Parties undertake: 1. to establish or maintain a system of social security; 2. to maintain the social security system at a satisfactory level at least equal to that required for ratification of International Labour Convention (No. 102) Concerning Minimum Standards of Social Security; 3. to endeavour to raise progressively the system of social security to a higher level; 4. to take steps, by the conclusion of appropriate bilateral and multilateral agreements, or by other means, and subject to the conditions laid down in such agreements, in order to ensure: a. equal treatment with their own nationals of the nationals of other Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Contracting Parties; b. the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Contracting Parties.” 25. In accordance with Article 20 of the Social Charter, the Republic of Poland considered itself bound by a number of substantive provisions of the Charter, including Article 12. 26. Article 37 of the Constitution reads: “1. Any person within the jurisdiction of the Republic of Poland shall enjoy the freedoms and rights guaranteed by the Constitution. 2. Exemptions from this principle with respect to aliens shall be specified by statute.” Article 67 § 1 of the Constitution provides: “A citizen shall have the right to social security whenever incapacitated for work by reason of sickness or invalidity as well as having attained retirement age. The scope and forms of social security shall be specified by statute.” 27. The social security scheme for farmers is regulated by the Farmers' Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). At the relevant time section 1(1) of the 1990 Act provided, in so far as relevant: “The social security [scheme] for farmers shall cover farmers of Polish nationality and Polish members of their household working with them.” 28. The Social Security (Farmers and Members of their Families) Act of 14 December 1982, which predated the 1990 Act, did not lay down a nationality condition. 29. The scheme set out in the 1990 Act provides the following benefits: (1) sickness and maternity benefit, (2) benefit in respect of occupational injury and disease, and (3) old-age and invalidity pension. It is operated by the Farmers' Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego), a specialised government agency which is subsidised by the State budget. Depending on the size of their farms, farmers are either required to join the scheme by law or may join at their own request. Each farmer admitted to the scheme is required to pay contributions to it, the amount of which does not depend on the size of the farm or the level of income from it. The precondition for admission to the scheme is to be an owner of a farm, regardless of whether farming is the main source of the farmer's livelihood. 30. On 2 April 2004 the 1990 Act was amended. The relevant amendment, which entered into force on 2 May 2004, broadened the range of farmers who could be admitted to the farmers' social security scheme by, inter alia, including nationals of the EU Member States and foreign nationals residing in Poland on the basis of a visa or a residence permit. 31. At the relevant time the rules governing the operation of the general social security scheme for employees were laid down in the Social Security (Organisation and Financing) Act of 25 November 1986 (ustawa o organizacji i finansowaniu ubezpieczeń społecznych). The Act did not provide for any restrictions on admission to the general social security scheme on the basis of an employee's nationality, with the exception of those aliens who did not reside permanently in the country or were employed by foreign diplomatic missions. On 1 January 1999 the Act of 25 November 1986 was repealed and replaced by the Social Security System Act of 13 October 1998 (ustawa o systemie ubezpieczeń społecznych). However, the rule in respect of the admission of employees of foreign nationality to the general social security scheme remains the same. 32. In 1948 Poland and France concluded the General Convention on Social Security (Konwencja Generalna pomiędzy Polską a Francją o zabezpieczeniu społecznym). However, the provisions of that Convention were applicable exclusively to employees and other workers in comparable positions, as opposed to self-employed persons.