CASE OF MAREK 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 1951 and lives in Łańcut. 6. Prior to her early retirement she had been employed for 23 years and had paid her social security contributions to the State. Between October 1992 and November 1997 she received a disability pension. 7. On 6 March 2000 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 son’s health condition, a medical certificate issued by a specialist doctor. The certificate stated that the child (born in 1985) suffered from chronic asthma and that he was in need of his parent’s constant care. 9. On 19 April 2000 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension with effect of 1 March 2000. 10. Due to the applicant’s employment the Social Security Board initially suspended the payment of the pension until the end of April 2000. The payment started on 1 May 2000. 11. The EWK pension granted to the applicant amounted to 773.89 Polish zlotys (PLN) (approximately EUR 193). 12. 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. 13. On an unspecified date the Rzeszów Social Security Board asked 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. 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 25 April 2003 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. 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 earlyretirement 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 12 May 2004 the Rzeszów Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. 18. The applicant appealed against the first-instance judgment. 19. On 6 October 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. On 24 February 2004 the Supreme Court refused to examine the applicant’s cassation appeal. The Supreme Court’s decision was served on the applicant’s lawyer on 15 March 2005. 21. Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board, despite the revocation of her right to an early-retirement pension. 22. Throughout the whole period of receiving the EWK pension the applicant did not work. 23. On 1 May 2003 the applicant registered her business activity which she continued until 8 November 2005. Between 22 June and 1 August 2005 the activity was suspended. 24. Between 1 February and 31 October 2006 the applicant was employed. 25. The Government submitted that the applicant’s gross annual income in 2006 amounted to PLN 8,293 (approx. EUR 262) which constituted 27.90% of the average salary in Poland at the relevant time. 26. On 1 November 2006 the applicant turned 55 and she was granted a right to early retirement. Between 2006 and 2010 the early retirement amounted to PLN 1,150-1,300 (approx. EUR 290-325) which constituted approx. 40% of the average net salary at the relevant time. 27. The Government submitted that “between 2003 and 2005 the applicant was making profits of her business activity”, however, they were unable to submit information as regards the amount of the profits. 28. The applicant submitted that her business activity was a small shop in a modest wooden pavilion. She was forced to undertake this activity because of her economic situation after the revocation of her EWK pension. The profits were irregular and very modest. Sometimes she could not afford to pay the taxes and social insurance premiums and had to borrow money to do so. She produced her tax declarations for the years 2003-2009 from which it emerges that from her business activity she earned PLN 3,237.09 (approx. EUR 737) in 2003, PLN 1,404.49 (approx. EUR 312) in 2004 and PLN 912.90 (approx. EUR 234) in 2006. In 2005 her tax declaration showed a loss of PLN 3,751.85 (approx. EUR 938).