CASE OF WĘGRZYN 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 1955 and lives in Widełka. 6. The applicant has two children. Prior to his early retirement he had been employed and had paid his social security contributions to the State. 7. On 13 February 2002 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 21 December 2001. The certificate stated that the child (born in 1991) suffered from neurogenic bladder dysfunction and that she was in need of her parent’s constant care. 9. On 18 February 2002 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 February 2002 due to the fact that the applicant was still working on the date of the decision. 11. On 28 February 2002 the applicant’s employment contract expired. 12. Consequently, on 1 March 2002 the Rzeszów Social Security Board started to pay the retirement pension in the net amount of 943.88 Polish zlotys (PLN) (approx. EUR 232). 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. 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 8 October 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 decision 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 20 November 2003 the Rzeszów Regional Court dismissed the applicant’s appeal. 19. The applicant appealed against the first-instance judgment. 20. On 16 April 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 17 September 2004 the Supreme Court rejected the cassation appeal (odrzucił) on the ground that the lawyer had not indicated the grounds 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. According to the Government’s submissions, on 28 October 2002, the applicant started working at his previous employers’. He continued his employment there until 31 January 2005. As of 1 February 2005 he continued employment with another employer where he is still working on a permanent basis. 26. The Government also submitted that the applicant’s gross annual income amounted to approx. 95% of the average brut salary in Poland in 2003, 97% in 2004, 93% in 2005, 100% in 2006, 82% in 2007, 98% in 2008 and 104% in 2009. 27. The applicant submitted that on 28 October 2002 he had started work as an auxiliary employee with the lowest remuneration and that his salary was lower than before the granting of the EWK pension. He produced a copy of his employment contract dated 28 October 2002 from which it emerges that the contract had been concluded for three months and that the applicant had been paid PLN 1,000 (approx. EUR 250). He also produced two copies of his further employment contracts of 30 April 2003 and 31 October 2003 also concluded for three months each with remuneration amounting to PLN 1,000. 28. According to the information available on the official website of the Social Security Board the average remuneration in Poland was PLN 2,133 in 2002 and PLN 2,131 in 2003. It follows that the applicant’s salary in these years amounted to less than 50% of the average remuneration. 29. The Government also submitted that before being granted the EWK pension the applicant had been employed and his income had amounted to approx. 112% of the average brut salary in 1997, 140% in 1998, 102% in 1999, 109% in 2000 and 136% in 2001. 30. The Government further submitted that the applicant’s son had also worked as of 1 February 2007.