CASE OF HELENA TRZNADEL v. POLAND
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1957 and lives in Mielec. 6. The applicant is married with two children. Prior to her early retirement she had been employed for twenty eight years and had paid social security contributions to the State. 7. On 28 December 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 17 December 2001. The certificate stated that her daughter N. (born in 1996) had suffered in particular from chronic rhinitis (przewlekła zapalenie nosa) and chronic bronchitis (zapalenie oskrzeli). 9. On 29 January 2002 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 678.80 Polish zlotys. 10. On 25 September 2002 the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of her parent. On an unknown date the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 11. On 2 October 2002 the Rzeszów Social Security Board issued simultaneously two decisions for the applicant. By virtue of the first decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings and revoked the initial decision granting a pension and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance. 12. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. 13. On 22 September 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) quashed the SSB’s decisions and granted the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance. The court considered that the SSB should not have reopened the proceedings ex officio. The parties appealed. 14. On 26 February 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) quashed the Regional Court’s judgment and remitted the case. 15. On 29 July 2004 the Tarnobrzeg Regional Court dismissed the applicant’s appeal. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. 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 did not satisfy the requirement of necessary permanent care. 16. On 24 November 2004 the Court of Appeal dismissed the appeal. 17. On 8 March 2005 the Supreme Court refused to entertain a cassation appeal lodged by the applicant’s lawyer. 18. Following the revocation of her right to the early-retirement pension the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board. 19. The applicant did not provide details about her financial situation after the revocation of EWK pension. She only submitted that she was unemployed. 20. The Government submitted that following the revocation of the EWK pension the applicant did not work and most likely benefitted from social assistance. They stressed that between 1 January 1999 and 6 July 2003 the applicant’s husband was employed. His yearly income amounted to 9,120 PLN in 2002 and 6,191 PLN in 2003. As of 1 July 2003 the applicant’s husband became eligible for a work disability pension which he has been receiving ever since. 21. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they have failed to specify which of those benefits, if any, were available in the applicant’s situation. 22. Under the relevant laws currently in force, the applicant will qualify for a regular retirement pension when she turns sixty in 2017. 23. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (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. 24. Out of all applications lodged with the Court, about twenty-four applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case. 25. One-hundred-and-four applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eighty-one applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements. 26. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 31-34, 15 September 2009. 27. The reopening of the proceedings concerning the early-retirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows: “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.” On 1 July 2004 a new subparagraph 114 (1)(a) was added, which reads as follows: “Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.” 28. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second-instance court. A party had to be represented by an advocate or a legal adviser. 29. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1) a breach of substantive law as a result of its erroneous interpretation or wrongful application; 2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 30. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was well-founded the Supreme Court could also amend the impugned judgment and adjudicate on the merits. 31. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 (3) 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”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an age-limit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution. 32. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 (3) of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits. 33. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted. 34. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.