CASE OF KRUSZYŃSKI 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 1952 and lives in Mielec. 6. The applicant is married with two children. Prior to his early retirement he had been employed for seven years and had paid his social security contributions to the State. 7. On 9 January 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 son’s health condition, a medical certificate issued by a specialist doctor. The certificate stated that the child (born in 1990) suffered from chronic inflammation of upper respiratory tract and that he was in need of his parent’s constant care. 9. On 19 January 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension. The pension amounted to PLN 1,155.05 brut which at that time constituted about 54% of the average brut salary in Poland. 10. The Social Security Board initially suspended the payment of the pension until 26 January 2001 due to the fact that the applicant was still working on the date of the decision. The applicant’s employment relationship was terminated with effect from 26 January 2001 and the pension was paid as of that date. 11. 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. 12. 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. On 6 June 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 13. On 10 and 11 June 2002 the Rzeszów Social Security Board issued two decisions in respect of the applicant. 14. 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. 15. On 24 June 2002 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. 16. On 4 December 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) amended the challenged decisions and granted the applicant the right to the EWK payment with effect from 1 June 2002. 17. The Social Security Board appealed against the firstinstance judgment. 18. On 22 April 2004 the Rzeszów Court of Appeal allowed the Board’s appeal, amended the challenged judgment and dismissed the applicant’s appeals lodged against the Social Security Board’s decisions. 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. 19. On 14 December 2004 the Supreme Court refused to examine the cassation appeal. 20. 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. 21. Throughout the whole period of receiving the EWK pension the applicant did not work. 22. On 1 August 2002 the applicant started to work in a publishing house where he continued work until 4 February 2004. The applicant subsequently worked between 23 February and 22 September 2004, 2 and 17 October 2004, 1 February and 30 April 2006, 4 August 2006 and 18 July 2008. Between 18 October 2004 and 31 January 2006 the applicant worked on the basis of a civil law contract. Between 23 May and 3 August 2006 he remained unemployed. 23. On 8 July 2008 the applicant was granted a disability pension until 31 August 2011. The pension amounted to approx. 40% of the average net salary. 24. The Government submitted that the applicant’s gross annual income was PLN 3,690 (approx. EUR 971) in 2002, PLN 10,168 (approx. EUR 2,365) in 2003, PLN 8,801 (approx. EUR 1,956) in 2004, PLN 10,404 (approx. EUR 2,600) in 2005, PLN 11,349 (approx. EUR 2,910) in 2006, PLN 19,494 (approx. EUR 5,118) in 2007, PLN 14,137 (approx. EUR 4,040) in 2008, PLN 33,306 (approx. EUR 7,570) in 2009 and PLN 9,399 (approx. EUR 2,350) in 2010. 25. The Government further submitted that the applicant’s wife had a gainful employment. In the years 1999-2007 she earned around 100% of the average gross salary in Poland. As of 2007 she acquired the right to an oldage pension but she continued to work, so her income after 2007 rose to 110-120% of the average gross salary. 26. The applicant has a daughter who also worked since 2004. She earned between 40 and 60% of the average gross salary in Poland in the years 2004-2009.