FOURTH SECTION
DECISION
Application no. 34997/04
Janina KOPTA
against Poland
The European Court of Human Rights (Fourth Section), sitting on
11 February 2014 as a Committee composed of:
Ledi Bianku, President,
Paul Mahoney,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 9 July 2004,
Having regard to the comments submitted by the respondent Government
and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Janina Kopta, is a Polish national, who was born in
1958 and lives in Rzeszów.
2. The Polish Government (“the Government”) were represented by their
Agent, Mr J. Wołąsiewicz, succeeded by Ms. J. Chrzanowska, of the
Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised
as follows.
4. The applicant has one daughter whom she is bringing up on her own.
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KOPTA v. POLAND DECISION
1. Proceedings concerning the grant and the revocation of an EWK
pension
5. On 31 October 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.
6. 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. The certificate stated that
the child (born in 1988) suffered from chronic asthma and that she was in
need of her parent’s constant care.
7. On 22 November 2001 the Rzeszów Social Security Board issued a
decision granting the applicant the right to an early retirement pension in the
amount of 701 Polish zlotys (PLN) net (approx. 180 euros (EUR)).
8. 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.
9. On 30 April 2002 the applicant’s employment contract expired. It had
been terminated by the employer due to his difficult economic situation.
10. On an unspecified date in 2002 the Rzeszów Social Security Board
had 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 7 May 2002 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 22 May 2002 the Rzeszów Social Security Board issued
simultaneously two decisions in respect of the applicant.
12. By virtue of one decision, the payment of the applicant’s pension
was discontinued with immediate effect. It follows that the applicant was
never paid the pension. 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 early retirement pension under the
scheme provided for by the 1989 Ordinance.
13. The applicant appealed against the respective decisions divesting her
of the right to an early-retirement pension. She submitted that she should
receive the benefit because her 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 her retirement
pension was contrary to the principle of vested rights.
14. On 17 March 2003 the Rzeszów Regional Court dismissed the
applicant’s appeal.
15. The applicant appealed against the first-instance judgment.
16. On 17 October 2003 the Rzeszów Court of Appeal dismissed the
applicant’s further appeal. The domestic court held that the applicant had
KOPTA v. POLAND DECISION
3
been rightfully divested of her right to a pension under the scheme provided
by the 1989 Ordinance as she had not satisfied the requirement of necessary
permanent care.
17. A professional lawyer, who had been either hired by the applicant or
appointed to represent her under a legal-aid scheme, prepared and lodged a
cassation appeal against the second-instance judgment on the applicant’s
behalf.
18. On 28 April 2004 the Supreme Court refused to examine the
cassation appeal.
2. The applicant’s financial situation
19. The applicant’s pension was originally suspended and then revoked
three weeks after her employment contract had expired. It follows that she
never received any payment of the granted early retirement.
20. According to the Government’s submissions, the applicant worked
on a permanent basis between 1 April 1977 and 30 April 2002. After the
revocation of her pension, between 4 June and 3 December 2002, the
applicant received unemployment benefit. Afterwards, until July 2007, she
was registered as an unemployed person having no right to benefits. The
Government also submitted that after July 2007 the applicant was not
registered in the social insurance scheme.
21. The applicant submitted an employment certificate confirming that
her employment contract had expired on 30 April 2002, after the statutory
notice period, due to reasons concerning the employer.
22. She further submitted a certificate issued by the Rzeszów Local
Employment Office on 27 May 2002 according to which on 4 June 2002 she
was granted an employment benefit of PLN 572 (approx. EUR 124) and a
further certificate issued by the same institution on 12 August 2009
confirming that she had received monthly a family benefit for her daughter
in the amount of PLN 85 (approx. EUR 20) and a further monthly benefit of
PLN 136.64 (approx. EUR 30) between May and August 2002. Between
September 2002 and April 2004 she received only a family benefit in the
amount of PLN 42.50 (approx. EUR 10).
23. She also produced a certificate issued on 10 August 2009 by the
Social Care Centre confirming that she had received the following benefits:
monthly family benefit in the amount of PLN 43 (approx. EUR 11) and
PLN 170 (approx. EUR 38) because she raised her child on her own between
1 May and 31 August 2005, monthly family benefit of PLN 43 between
1 March and 31 August 2006 and PLN 68 (approx. EUR 17) between
1 September 2009 and 1 August 2007. Additionally, she received
PLN 90 (approx. EUR 20) and PLN 100 (approx. EUR 25) at the beginning of
September 2004 and September 2006 respectively for the beginning of the
school year.
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KOPTA v. POLAND DECISION
24. The applicant submitted that her employment contract could not be
terminated earlier than on 30 April 2002 because of the need to train a new
employee who would replace her at work and because of her financial
commitments towards the employer.
B. Relevant domestic law and practice
25. The legal provisions applicable at the material time and questions of
practice are set out in the judgments in the case of Moskal v. Poland,
no. 10373/05, §§ 31-34, 15 September 2009 and Antoni Lewandowski
v. Poland, no. 38459/03, §§ 36-43, 2 October 2012).
COMPLAINT
26. The applicant complained in substance under Article 1 of Protocol
No. 1 to the Convention about divesting her of her right to the EWK
pension.
THE LAW
ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
A. Preliminary issues
1. Scope of the case before the Court
27. The applicant complained that divesting her, in the circumstances of
the case, of her acquired right to an early-retirement pension amounted to an
unjustified deprivation of property. This complaint falls to be examined
under Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.”
KOPTA v. POLAND DECISION
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2. The Government’s objections
28. The Court notes that the Government raised several objections to the
admissibility of the case. They submitted that the applicant had not
complied with the six-month time requirement, as required by Article 35 § 1
of the Convention. They further submitted that the application constituted
an abuse of the right of individual application, and that the applicant had
failed to exhaust domestic remedies because she should have lodged a
complaint with the Constitutional Court. They also claimed that the present
application was incompatible ratione materiae and ratione personae with
the Convention.
29. As regards non-compliance with the six-month rule, the Court has
already considered in other EWK cases that the applicants should not be
penalised for having tried to file a cassation appeal with the Supreme Court
in order to avoid any risk of having their case rejected by the Court for
non-exhaustion of domestic remedies (see, for example, Frączek-Potęga
v. Poland, no. 39430/04, § 55, 4 December 2012). Accordingly, the final
decision in the case under consideration was given by the Supreme Court on
28 April 2004 whereas the applicant lodged her application with the Court
on 9 July 2004. That being so, the Court concludes that the applicant
complied with the six-month term laid down in Article 35 § 1 and the
Government’s objection should therefore be dismissed.
30. The Court further notes that it has already examined identical
objections regarding abuse of the right of individual application and
non-exhaustion as regards the applicant’s failure to lodge a constitutional
complaint and dismissed them, in the follow-up cases to Moskal
(see, for instance, Lewandowski, cited above, §§ 45-72 and Lew v. Poland,
no. 34386/04, §§ 35-62, 4 December 2012). The Court sees no reason to
depart from its previous findings.
31. The Court has also already examined the Government’s objection as
regards the alleged incompatibility ratione materiae of the “EWK”
applications and dismissed it (see Moskal, cited above, §§ 38-45). It sees no
reason to depart from its previous finding.
32. As regards the Government’s objection concerning the alleged
incompatibility ratione personae with the Convention, the Court notes that
the “EWK” pension in question had been granted personally to the applicant
and that, following the revocation of the pension, the applicant was involved
in the judicial proceedings complained of as a party. In any event, the Court
has already examined a number of “EWK” applications and found, at the
admissibility stage of their examination that they were not manifestly
ill-founded or inadmissible on any other grounds (see among many other
authorities, Antoni Lewandowski, cited above, § 72; Lasota v. Poland,
no. 6762/04, § 54, 2 October 2012). It follows that the Government’s
objection concerning the inadmissibility ratione personae of the application
must be dismissed.
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KOPTA v. POLAND DECISION
B. Article 1 of Protocol No. 1 to the Convention
1. The parties’ submissions
33. The applicant submitted that divesting her, in the circumstances of
the case, of her acquired right to an early-retirement pension had amounted
to an unjustified deprivation of property.
34. The Government claimed that the interference with the applicant’s
property rights had been lawful and justified. In particular, divesting the
applicant of her right to the early-retirement pension had been provided for
by law and was in the general interest. There was also a reasonable
relationship of proportionality between the interference and the interests
pursued.
2. The Court’s assessment
35. The Court notes at the outset that the applicant’s right to early
retirement had its basis in the Social Security Board’s final decision of
22 November 2001. The payment was suspended because of the applicant’s
employment (see paragraph 8 above). The Court considers that the decision
referred to above which granted the applicant’s right amounted to
“possessions” within the meaning of Article 1 of Protocol No. 1
(see Czajkowska and Others v. Poland, no. 16651/05, §§ 50-51, 13 July 2010).
It follows that Article 1 of Protocol No. 1 is applicable in the present case.
(a) General principles
36. The relevant general principles are set out in the Moskal judgment,
cited above, paragraphs 49-52. The Court would nevertheless reiterate that
any interference by a public authority with the peaceful enjoyment of
possessions should be lawful and must pursue a legitimate aim by means
reasonably proportionate to the aim sought to be realised (see Moskal, cited
above, §§ 49 and 50).
(b) Application of the above principles to the present case
(i) Whether there has been an interference with the applicant’s possessions
37. The parties did not dispute that the decisions of the Rzeszów Social
Security Board of 22 May 2002, subsequently validated by two court
instances (the regional court and the court of appeal), which deprived the
applicant of the right to receive the EWK pension, amounted to an
interference with her possessions within the meaning of Article 1 of Protocol
No. 1 to the Convention. The Court sees no reason to hold otherwise.
KOPTA v. POLAND DECISION
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(ii) Lawfulness of the interference and legitimate aim
38. As in the Moskal case the Court considers that this interference was
provided for by law and pursued a legitimate aim, as required by Article 1 of
Protocol No. 1 to the Convention (see Moskal, cited above, §§ 56, 57 and
§§ 61, 63 and also Iwaszkiewicz v. Poland, no. 30614/06, §§ 47, 48, 26 July 2011).
(iii) Proportionality
39. However, in assessing the proportionality of this interference, the
Court considers that the present case differs substantially from previously
examined cases in which the applicants resigned from gainful employment
in order to obtain the EWK pension, the pension was their only income, and
its sudden revocation placed an excessive burden on them as they were left
without any resources or perspective to find a new job quickly (see, among
many other examples, Moskal; Lewandowski; Potok and Lew, cited above).
40. In contrast, in the instant case the applicant did not give up her
employment in order to receive the pension; on the contrary, she decided to
continue employment. Her contract was dissolved by the employer five
months after the pension had been granted for reasons concerning the
employer (see paragraphs 9 and 21 above). Unlike in the Moskal case it
cannot be said that the administrative decision was the basis to establish
personal plans for the future by interrupting employment. The consequence
of such dissolution of the applicant’s employment relationship was that she
was entitled to an unemployment benefit for the first six months following
the termination of her employment (see paragraph 20 above). The benefit
amounted to PLN 572 (see paragraph 22 above). For the first three months
after the revocation of the pension the applicant also received a family
benefit for her daughter in the amount of PLN 43 and an additional benefit
of PLN 137 (see paragraphs 22 and 23 above). It follows that as a result of
the revocation of the pension, in the crucial period directly following the
revocation, she was not faced with the total and immediate loss of her only
source of income (see Rzepa v. Poland (dec.), no. 30361/04, 9 April 2013, § 34).
41. In view of the foregoing, it cannot be said that the authorities’ decisions
placed on the applicant an excessive burden incompatible with Article 1 of
Protocol No. 1 to the Convention (see Rzepa, cited above, § 31-37).
42. It follows that the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı
Deputy Registrar
Ledi Bianku
President