CASE OF MOSKAL v. POLAND
Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant, Ms Maria Moskal, is a Polish national who was born in 1955 and lives in Glinik Chorzewski. 6. The applicant is married with three children. She has a medium-level education. Prior to her early retirement she was employed for thirty-one years and had paid her social security contributions to the State. Her child, born in 1994, suffers from atopic bronchial asthma (atopowa astma oskrzelowa), various allergies and recurring sino-pulmonary infections. 7. On 6 August 2001 the applicant filed an application with the Rzeszów Social Security Board 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. The particular type of pension sought by the applicant was at the relevant time regulated 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”). 9. Along with her application for a pension, the applicant submitted, among other documents, a medical certificate issued on 2 August 2001 by a specialist in allergy and pulmonology from the Health Service Institution in Strzyżów (Zespół Opieki Zdrowotnej). The certificate stated that the applicant’s seven-year-old son had suffered from the age of three months from atopic bronchial asthma, various allergies, as well as frequent sinopulmonary infections often accompanied by fever and bronchial constriction (spastyczne skurcze oskrzeli). Consequently, he was in need of his mother’s constant care. It was further noted that the medical certificate had been issued in connection with the application for an early-retirement pension regulated by the 1989 Ordinance in view of the need to provide permanent care to the child from 31 December 1998 onwards. 10. On 29 August 2001 the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) issued a decision granting the applicant the right to an early-retirement pension in the amount of 1,683 Polish zlotys (PLN) gross (PLN 1,020 net), starting from 1 August 2001. In the same decision, however, 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 31 August 2001 the applicant resigned from her full-time job as a clerk at the Polish Telecommunications Company in Rzeszów, where she had been employed for the past thirty years. 12. Consequently, on an unspecified date, the Rzeszów Social Security Board issued a new decision authorising the payment of the previously awarded retirement pension starting from 1 September 2001. 13. Subsequently, the applicant was issued with a pensioner’s identity card marked ‘valid indefinitely’ and for the following ten months she continued to receive her pension without interruption. 14. On 25 June 2002 the Rzeszów Social Security Board issued two decisions. By virtue of the first decision, the payment of the applicant’s pension was discontinued starting from 1 July 2002. By virtue of the second decision, the Board revoked the initial decision of 29 August 2001 and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance. The latter decision stated that on 4 June 2002 the proceedings concerning the applicant’s right to a pension had been re-opened ex officio and that, as a result, “the medical certificate attached to her application for a pension had been found to raise doubts [as to its accuracy]”. Furthermore, the following standard clause appeared in the decision: “In the light of the medical documentation obtained concerning the child, it was established that the condition with which the child had been diagnosed was not enumerated in the [1989] Ordinance, and the analysis of the level of severity and the course [of the disease] did not indicate an impairment of bodily functions to such a degree as to justify the award of the pension [on account of] the necessity of permanent care of the child. It follows that the medical certificate serving as the basis for the award of the benefit is not supported by medical documentation. Consequently the right to a retirement pension is denied.” 15. The applicant appealed against the decision of 25 June 2002 divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her son required her constant care, as confirmed by the medical certificate attached to the original application. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 16. On 26 February 2003 the Rzeszów Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. 17. A medical report by an expert in pulmonology was ordered by the Regional Court. Having examined the medical documentation concerning the applicant’s son, as well as the child in person, the expert found that the applicant’s son suffered from sporadic bronchial asthma and recurring sinopulmonary infections. The expert concluded that the child did not require, as of 31 December 1998 or at the time of the proceedings, his mother’s permanent care, her nursing or any further aid, since his bronchial asthma did not significantly impair his respiratory functions. He further observed that the applicant’s care was needed only when the child’s condition occasionally became more severe. 18. Relying on the above expert opinion, the Regional Court held that the applicant had been rightfully divested of the right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care. The Regional Court did not examine the case from the standpoint of the doctrine of vested rights. 19. On 16 October 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against the aforementioned judgment. The Court of Appeal agreed with the findings of fact contained in the expert opinion produced in the course of the first-instance proceedings to the effect that the applicant’s son did not require at the relevant time his mother’s permanent care. 20. On the issue of the re-opening of the proceedings, the Court of Appeal observed that decisions concerning retirement and disability pensions were only of a declaratory character. Therefore, they could be quashed by a social security authority where new evidence had been submitted or relevant circumstances, which pre-existed the initial pension award but which had not been taken into consideration by the authority beforehand, had come to light. 21. Furthermore, the Court of Appeal observed that pension decisions could be verified even in the light of pre-existing circumstances which had not been taken into consideration as a result of the authority’s own mistake or negligence. On the other hand, the Court of Appeal agreed with the applicant that the proceedings could not be re-opened as a consequence of a different assessment of the very same evidence which had accompanied the original application for a pension. 22. The Court of Appeal found that, in the instant case, the impugned pension proceedings had been re-opened because relevant circumstances pre-existing the initial pension award had been discovered by the authority in the course of a supplementary examination of the child’s entire medical record by the Social Security Board’s doctor (lekarz orzecznik). 23. Finally, the Court of Appeal stated that the doctrine of vested rights did not apply to rights acquired unjustly, for example when a person had been granted a right to a pension whereas in fact he or she had never met the requirements laid down in the relevant provisions. The Court of Appeal recalled that the purpose behind the 1989 Ordinance was to enable the carers of children with extremely severe disorders to take early retirement. It was aimed at providing a substitute source of income in cases where persons had lost their wages owing to the need to terminate their employment in order to take care of their sick children on a permanent basis. The Court of Appeal emphasised that, in such circumstances, it was necessary for the social security authorities to make a careful examination of whether or not persons applying for the right in question satisfied all the requirements. 24. On 7 May 2004 (decision served on 7 August 2004) the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal, fully endorsing the Court of Appeal’authority had lacked evidence as to the severity of the child’s condition, since the medical certificate attached to the application did not specify those activities which the child could not perform due to his alleged impairment. The fact that the aforementioned evidence had been lacking at the date of the decision did not come to light until after the validation of the decision. Therefore, the impugned proceedings had been re-opened due to the discovery of new relevant circumstances and not on the basis of a reexamination of the very same evidence attached to the applicant’s application for a pension. 25. The applicant was not ordered to return her early-retirement benefits paid by the Social Security Board from 1 September 2001 until 1 July 2002, despite the revocation of her right to the early-retirement pension. 26. In the period from 1 July 2002 (the date on which the payment of the applicant’s “EWK” pension was discontinued) to 25 October 2005 the applicant was not in receipt of any social benefits. The applicant submitted that in that period she had had no other income. As a result of separate social security proceedings, which had been instituted by the applicant, the Strzyżów District Labour Office (Powiatowy Urząd Pracy) decided on 25 October 2005 to grant the applicant a preretirement benefit (zasiłek przedemerytalny) in the amount of 523 Polish zlotys (PLN) net. Because, under the applicable law, a three-year statute of limitations applies to social security claims the decision to grant the right had a retroactive effect, with a starting date of 25 October 2002. As a result, on an unspecified date, presumably on 1 August 2004, the applicant received a pre-retirement benefit in the form of a lump-sum payment for the period between 25 October 2002 and 31 July 2004, without interest. The benefit was at first paid by the Strzyżów Regional Labour Office (Powiatowy Urząd Pracy) and since 1 August 2004 it was paid by the Rzeszów Social Security Board. As of March 2008 the applicant’s preretirement benefit amounts to 594 Polish zlotys (PLN) net. 27. In the light of the law as it now applies, it appears that the applicant will qualify for a regular retirement pension in 2015. 28. Approximately 120 applications arising from a similar fact pattern have been brought to the Court. The applicant in the instant case and most of the other applicants form the Association of Victims of the Social Security Board (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region. 29. The applicant submitted, according to the Association, that only 10% of the total number of “EWK” pension recipients had been subjected to review and re-opening under Section 114 of the 1998 Law. 30. The Government submitted that as of the end of 2006 approximately 76,600 individuals had been in receipt of the “EWK” pension. Although there were no statistics as to how many pensions had been revoked either countrywide or in each region, that number was very small. 31. The system of social security in Poland is regulated by the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych) and a number of other acts applying to specific occupational groups and regulating specific types of benefits. Proceedings for granting welfare benefits are two-tier. First, an application for a benefit is made to the regional Social Security Board. The board makes an assessment of the eligibility criteria for each type of benefit and issues a decision. Then, in the event that an individual concerned appeals, the decision becomes subject to judicial review by a social security court, which is a specialised branch of a regional civil court. The Social Security Board is a State authority which carries out administrative functions and issues declaratory decisions. In the judicial review phase, the Board becomes a party to the proceedings before the social security court. A judicial decision taken by the regional social security court may then be challenged by either party to the proceedings before a special social security branch of a court of appeal. Ultimately, a decision delivered by an appellate court may be appealed to the Supreme Court. This remedy is available irrespective of the amount of the claim. 32. The 1989 Ordinance ceased to be in force on 31 December 1998. However, its provisions remained in operation with regard to persons who had met the requirements of an early-retirement pension before that date but had failed to apply for the benefit in due time. The conditions to be fulfilled by a person in order to qualify for an early-retirement pension were laid down by paragraph 1 of the 1989 Ordinance. Paragraph 1.1 contained a reference to section 26 paragraph 1 point 2 of the Law of 14 December 1982 on retirement pensions of employees and their families. In the relevant part it provided that persons entitled to an earlyretirement pension were those persons (both women and men) who had been employed for at least 20 or 25 years and who personally took care of a child. Paragraph 1.2 provided that for children under the age of 16 it was not necessary to submit an official Social Security Board disability certificate. It was sufficient to present a medical certificate issued by a specialist medical clinic stating: “due to the health condition, caused by one of the diseases enumerated in paragraph 1.3, the child requires permanent care”. Paragraph 1.3 provided that early retirement was justified by the following physical and/or mental conditions of the child: “1. Complete dysfunction of upper or lower limbs, pareses and palsies, which prevent the child from independent movement and from controlling his or her physiological functions; 2. Mild, moderate and severe mental retardation, mental disorders, injury or disease of the central nervous system, making impossible autonomy in decisions or in daily activities; 3. Mild mental retardation with accompanying significant impairment of movement, sight, hearing or other chronic diseases significantly impairing bodily functions; 4. Other diseases impairing body effectiveness to a very serious degree.” 33. The re-opening of the proceedings concerning the benefit in question is regulated in section 114 of the 1998 Law, which at the relevant time read as follows: “114.1 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.” 34. In its resolution of 5 June 2003 (no. III UZP 5/03), adopted by a bench of seven judges, the Supreme Court (Sąd Najwyższy) dealt with the question submitted by the Ombudsman (Rzecznik Praw Obywatelskich) as to whether a different assessment of the evidence attached to the application for a pension, carried out by a social security authority after validation of the decision concerning the pension, might constitute a ground for reopening the proceedings leading to 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. The answer was in the negative. The Supreme Court held, inter alia: “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.”