CASE OF HAJDUK 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 1956 and lives in Borki Nizińskie. 6. The applicant is married with two children. Prior to his early retirement he had been employed for 23 years and had paid his social security contributions to the State. 7. On 18 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 his application for a pension, the applicant submitted, among other documents concerning his daughter’s health condition, a medical certificate issued by a specialist doctor on 14 December 2001. The certificate stated that the child (born in 1990) suffered from, among other things, urinary tract infection and chronic headaches and that she was in need of her parent’s constant care. 9. On 20 December 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension. 10. The Social Security Board initially suspended the payment of the pension until the end of the year 2001 due to the fact that the applicant was still working on the date of the decision. 11. On 31 December 2001 the applicant’s employment contract expired. It had been terminated by the employer with three-month notice for reasons attributable to the employer’s financial situation. 12. Consequently, on 1 January 2002 the Rzeszów Social Security Board started to pay the retirement pension in the net amount of 1,324.57 Polish zlotys (PLN) (approximately 370 euros (EUR)). 13. The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and he continued to receive his pension without interruption until the date of the revocation of the right. 14. 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 daughter required the permanent care of a parent. On 13 September 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 15. On 19 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. 16. 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. 17. The applicant appealed against the respective decisions divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his 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 his retirement pension was contrary to the principle of vested rights. 18. On 25 September 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. 19. The applicant appealed against the first-instance judgment. 20. On 12 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 his right to a pension under the scheme provided by the 1989 Ordinance as he had not satisfied the requirement of necessary permanent care. 21. A professional lawyer prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf. 22. On 22 June 2004 the Supreme Court rejected the cassation appeal (odrzucił) on the ground that the lawyer had not properly described the circumstances which would justify the examination of the cassation appeal (okolicznośći uzasadniające rozpoznanie kasacji). 23. Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to an early-retirement pension. 24. Throughout the whole period of receiving the EWK pension the applicant did not work. 25. More than one year after the pension had been revoked, the applicant started working on the basis on a mandate contract. He worked for three months from 20 October until 22 December 2003. 26. In 2004 the applicant remained unemployed for ten months. On 25 October 2004 he started to work on a permanent basis. 27. The Government submitted that the applicant’s gross annual income was PLN 1,100 (approx. EUR 262) in 2003, PLN 2,056.67 (approx. EUR 456) in 2004, PLN 11,464.50 (approx. EUR 2,870) in 2005, PLN 12,480 (approx. EUR 3,285) in 2006, PLN 13,080 (approx. EUR 3,535) in 2007, PLN 14,111 (approx. EUR 3,813) in 2008, PLN 17,880 (approx. EUR 4,250) in 2009. 28. The Government also submitted that the applicant had owned a 4.59 ha farm and had received some direct payments from the Agency of Modernisation and Restructuring of Agriculture in the amount of PLN 1,948.43 (approx. EUR 430) in 2004, PLN 1,934.50 (approx. EUR 480) in 2005, 2,327.58 (approx. EUR 612) in 2006, PLN 2,161.67 (approx. EUR 584) in 2007, PLN 3,554.03 (approx. EUR 960) in 2008 and PLN 6,592.63 (approx. EUR 1,570) in 2009. They further submitted that “there were no doubts that the applicant’s farm had constituted a source of income”; they failed however to submit any evidence to support this statement. The applicant submitted that the income from his farm had been “minimal”. 29. The Government also maintained that the applicant’s wife had a gainful employment. In the years 2003-2007 she earned between 20 and 39% of the average gross salary in Poland. 30. The applicant has a son who also worked at the relevant time. He earned 5.25% of the average gross salary in Poland in 2002, 3.31% in 2003, 13.3% in 2004, 34.02% in 2005, 33.80% in 2007, 88.86% in 2008, 96.10% in 2009. In 2006 he apparently did not work. 31. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension when he turns sixtyfive in 2021.