FOURTH SECTION
CASE OF MOSKAL v. POLAND
(Application no. 10373/05)
JUDGMENT
STRASBOURG
15 September 2009
FINAL
01/03/2010
...
67. The Court observes that in the instant case the Government did not justify the measure in question by the need to make savings in the interests of the social security fund (unlike in Kjartan Ásmundsson v. Iceland, no. 60669/00, § 43, ECHR 2004‑IX). The State aimed primarily at achieving concordance between the factual situation of beneficiaries and their compliance with the statutory requirements for this type of pension.
68. In the instant case, a property right was generated by the favourable evaluation of the applicant’s dossier attached to the application for a pension, which was lodged in good faith, and by the Social Security Board’s recognition of the right (see also paragraph 45 above). Before being invalidated the decision of 29 August 2001 had undoubtedly produced effects for the applicant and her family (see in particular paragraph 11 above).
69. It must also be stressed that the delay with which the authorities reviewed the applicant’s dossier was relatively long. The 2001 decision was left in force for ten months before the authorities became aware of their error. On the other hand, as soon as the error was discovered the decision to discontinue the payment of the benefit was issued relatively quickly and with immediate effect (see paragraph 14 above).
70. In the Court’s opinion, the fact that the State did not ask the applicant to return the pension which had been unduly paid (see paragraph 25 above) did not mitigate sufficiently the consequences for the applicant flowing from the interference in her case.
71. Even though the applicant had an opportunity to challenge the Social Security Board’s decision of 25 June 2002 in judicial review proceedings, her right to the pension was determined by the courts only two years later and during that time she was not in receipt of any welfare benefit (see paragraphs 15-24 and 26 above).
72. As stated above, in the context of property rights, particular importance must be attached to the principle of good governance. It is desirable that public authorities act with the utmost scrupulousness, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other property rights. In the instant case, the Court considers that having discovered their mistake the authorities failed in their duty to act in good time and in an appropriate and consistent manner.
73. The Court, being mindful of the importance of social justice, considers that, as a general principle, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence. Holding otherwise would be contrary to the doctrine of unjust enrichment. It would also be unfair to other individuals contributing to the social security fund, in particular those denied a benefit because they failed to meet the statutory requirements. Lastly, it would amount to sanctioning an inappropriate allocation of scarce public resources, which in itself would be contrary to the public interest.
Notwithstanding these important considerations, the Court must, nonetheless, observe that the above general principle cannot prevail in a situation where the individual concerned is required to bear an excessive burden as a result of a measure divesting him or her of a benefit.
If a mistake has been caused by the authorities themselves, without any fault of a third party, a different proportionality approach must be taken in determining whether the burden borne by an applicant was excessive.
74. In this connection it should be observed that as a result of the impugned measure, the applicant was faced, practically from one day to the next, with the total loss of her early-retirement pension, which constituted her sole source of income. Moreover, the Court is aware of the potential risk that, in view of her age and the economic reality in the country, particularly in the undeveloped Podkarpacki region, the applicant might have considerable difficulty in securing new employment.
75. In addition, the Court notes that, despite the fact that under the applicable law the applicant qualified for another type of pre-retirement benefit from the State as soon as she lost her entitlement to the “EWK” pension, her right to the new benefit was not recognised until the decision of 25 October 2005, which finally brought an end to proceedings which had lasted three years. The amount of the applicant’s pre-retirement benefit is approximately 50 % lower that her “EWK” pension (see paragraph 26 above). Even though the decision to grant the benefit was backdated, the benefit due for the period between 25 October 2002 and 31 July 2004 was paid without any interest (see paragraph 26 above). The mistake of the authorities left the applicant with 50% of her expected income, and it was only after proceedings lasting three years that she was able to obtain the new benefit.
Lastly, the fact that the applicant retained her full right to receive, as of 2015, an ordinary old-age pension from the pension fund is immaterial since this would have been the case even if she had continued to receive her “EWK” pension.
76. In view of the above considerations, the Court finds that a fair balance has not been struck between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights and that the burden placed on the applicant was excessive.
It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
A. As regards the principle of legal certainty
77. The applicant also complained that the ex-officio re-opening of the social security proceedings, which had resulted in the quashing of the final decision granting her a right to a pension, was in breach of Article 6 § 1 of the Convention.
Article 6 § 1 of the Convention in its relevant part reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. The parties’ submissions
(a) The applicant
78. The applicant argued that the decision of 29 August 2001 of the social security authority granting her a right to an early-retirement pension was final. She submitted that the durability of social security decisions was crucial for the stability of the legal effects produced by such decisions. The principle of finality of such decisions corresponded to the principle of legal certainty of administrative decisions. In civil law that principle was referred to as res judicata and it resulted in the impossibility to institute new proceedings with the same subject matter involving the same parties.
79. The applicant referred to the Supreme Court’s resolution of 2003 in which it had been observed that section 114 of the 1998 Law did not allow for a new assessment of the same evidence accompanying the original application for a pension. The right to a pension could be reviewed only on the basis of new evidence or newly-revealed circumstances.
The applicant maintained that her right to an early-retirement pension had been revoked solely as a result of a new assessment of the evidence which had been attached to the original application for a pension in 2001.
(b) The Government
80. The Government submitted that a social security decision did not benefit from the protection of the principle of legal certainty, construed as the principle of res judicata. They also argued that the notion of legal certainty was not absolute and that in the instant case there had been relevant and sufficient reasons to depart from that principle in order to secure respect for social justice and fairness. In particular, the Government submitted that section 114 of the 1998 Law enumerated the instances when a re-assessment of a right to a benefit or the amount of the benefit was required. Any such re-assessment implied that administrative or social security proceedings could be re-opened and a new decision – replacing the previous one – issued.
Moreover, the Government relied on the principle, stated in a Supreme Court judgment of 2001 and resolution of 2003, that a party to proceedings was not entitled to claim a right to benefits which had been established on the basis of an erroneous and subsequently revoked decision of an administrative authority.
81. The Government also drew attention to the fact that in the instant case the decision of 25 June 2002 to divest the applicant of the right to the early-retirement pension in question had been the subject of judicial control, with all guarantees derived from Article 6 § 1 of the Convention.
They argued that if social security decisions were to benefit from the protection of a strictly applied principle of res judicata, administrative authorities would have no possibility to correct their decisions not to grant benefits to persons who were legitimately entitled to receive them.
Lastly, the Government observed that even if applied in the case of a social security decision, the principle of legal certainty, as defined in the Court’s case-law, should not prevent a domestic authority from revoking an administrative decision by which a welfare authority had erroneously granted a never-existing right to a pension. Such revocation should be regarded as a legitimate departure from the principle of legal certainty.
2. The Court’s assessment
82. The Court considers that the principle of legal certainty applies to a final legal situation, irrespective of whether it was brought about by a judicial act or an administrative or, as in the instant case, a social security decision which, on the face of it, is final in its effects.
It follows that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
83. However, having regard to the reasons which led the Court to find a violation of Article 1 of Protocol No. 1 to the Convention, the Court finds that the applicant’s complaint under Article 6 regarding the principle of legal certainty of the Convention does not require a separate examination.
B. As regards the alleged unfairness of the proceedings
84. The applicant also made a general complaint that the proceedings in her case had been unfair. In particular, she alleged that the domestic courts had wrongly assessed the evidence.
85. This complaint falls to be examined under Article 6 § 1 of the Convention.
However, pursuant to Article 35 § 3 of the Convention:
“The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded ...”
86. The Court has no jurisdiction under Article 6 of the Convention to substitute its own findings of fact for the findings of domestic courts. The Court’s only task is to examine whether the proceedings, taken as a whole, were fair and complied with the specific safeguards stipulated by the Convention.
87. In this connection, the Court notes that the applicant submitted that, contrary to the findings of the domestic courts, the impugned proceedings had been instituted as a result of a review of the same evidence as attached to her original application for a pension, and therefore not in compliance with the domestic law which stipulated the grounds for the re-opening of pension proceedings.
88. Assessing the circumstances of the instant case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly.
The applicant failed to submit any evidence that the national judicial authorities had in any way breached her rights or reached arbitrary conclusions. The national courts held hearings on the merits of the case, heard statements from all necessary witnesses, including the applicant, and examined and assessed all the evidence before them, including the medical records of the applicant’s child submitted by both parties and the reports of an independent medical expert. Moreover, the factual and legal reasons for the national courts’ findings were set out at length in the judgments of the Regional Court of 26 February 2003 and the Court of Appeal of 16 October 2003, as well as in the judgment of the Supreme Court of 7 May 2004. In their judgments the national judicial authorities gave a very persuasive and detailed analysis of all the relevant circumstances of the case and provided relevant and sufficient reasons for their decisions (see paragraphs 15-24 above).
89. It follows that the applicant’s complaint under Article 6 § 1, concerning the alleged unfairness of the proceedings is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION
A. As regards the loss of the “EWK” pension
90. The applicant complained of an interference with her right to respect for her private and family life in that by divesting her of the “EWK” pension the authorities had deprived her of her sole source of income and financial resources indispensable for her livelihood.
This complaint falls to be examined under Article 8 of the Convention, which in its relevant part reads as follows:
“1. Everyone has the right to respect for his private and family life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The parties’ submissions
(a) The applicant
91. The applicant submitted that prior to her early retirement her salary from the Polish Telecommunications Company had been an essential part of her family budget. Her husband’s salary was low and they had to maintain three minor children, including the one who was chronically ill. In the first years of her son’s life the applicant received regular help from her elderly mother. Afterwards, however, her mother could no longer be relied on because of her old age. This was when it became necessary for the applicant to take early retirement to stay at home with her son. The applicant submitted that in order to trigger the payment of the benefit granted in 2001 she had completely terminated her employment contract. She claimed that she had little prospect of finding a new job in the region, which had a high rate of unemployment. She also submitted that as a result of a legal loophole, having acquired the right to the “EWK” retirement pension she was considered to have waived indefinitely her right to other social security benefits.
(b) The Government
92. The Government submitted that the applicant was now in receipt of a pre-retirement benefit paid at first by the Strzyżów Regional Labour Office and currently, by the Rzeszów Social Security Board. Therefore, the applicant’s argument that she was considered to have waived her right to any social benefit was untrue.
The Government also stated that a right to work was not guaranteed by the Convention. In any event, there was no link between the decision divesting the applicant of her early-retirement pension and the fact that she stood little chance of finding a new job.
2. The Court’s assessment
93. The “EWK” pension is a social security benefit aimed at enabling parents to stop working in order to look after their seriously sick children. Moreover, in the instant case, the pension in question constituted the basis of the applicant’s family budget.
In these circumstances, the Court accepts that divesting the applicant of the “EWK” pension must constitute an interference with her right to respect for her family life, given that the measure in question entails severe consequences for the quality and enjoyment of the applicant’s family life and necessarily affects the way in which the latter is organised (see Petrovic v. Austria, 27 March 1998, § 27, Reports of Judgments and Decisions 1998‑II).
It follows that the instant complaint falls within the scope of Article 8 of the Convention. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
94. However, having regard to the reasons which led the Court to find a violation of Article 1 of Protocol No. 1 to the Convention, it finds that the applicant’s complaint under Article 8 of the Convention does not require a separate consideration.
B. As regards the domestic proceedings
95. The applicant also complained that Article 8 of the Convention had been breached because her child’s health condition had been the subject of an open dispute before the domestic courts during the pension proceedings. Moreover, the applicant claimed that her son had been examined in person by a court-appointed medical expert, which had caused him considerable stress. Lastly, the applicant complained that the report produced by the expert had been transferred to the Rzeszów Social Security Board.
96. The Court observes that the applicant instituted judicial proceedings to review the decision of the Rzeszów Social Security Board of 25 June 2005. As the Court has noted in the preceding paragraphs, in order to qualify for the “EWK” pension the applicant had to prove that her son’s health was fragile enough to make him dependent on the applicant’s permanent care.
97. In these circumstances, the Court finds it natural that the domestic courts examined all relevant evidence, which comprised various medical documents. Ordering a report on the child’s health to be prepared by an independent doctor was both in compliance with the domestic law and legitimate in view of the subject matter of the proceedings. Finally, the Court does not consider that the applicant’s son could have been particularly distressed by the medical check-up carried out by the court-appointed doctor. The child was about eight years old at the relevant time and used to medical personnel since he had received regular medical treatment from a very young age.
98. In view of the above, the Court finds that the applicant’s complaint does not disclose any appearance of lack of respect for the privacy of the applicant’s child or of interference with his rights protected by Article 8 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
99. Lastly, the applicant complained under Article 14 of the Convention, in conjunction with Article 1 of Protocol No. 1, of discrimination based on her place of residence. In particular, she alleged that limiting the practice of reviewing applications for the “EWK” pension to the Podkarpacki region had led to unjustified discrimination of “EWK” pensioners from that location. Without referring to any official statistics, the applicant submitted that the majority of the recipients of the “EWK” pension who had been subjected to a re-examination of their initial pension claims, had come from the Podkarpacki region.
This complaint falls to be examined under Article 14 of the Convention, in conjunction with Article 1 of Protocol No. 1 to the Convention.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
100. Noting that Article 1 of Protocol No. 1 to the Convention has been found to apply in the instant case (see paragraph 46 above) and assuming that a place of residence applied as a criterion for the differential treatment of citizens in the grant of State pensions is a ground falling within the scope of Article 14 of the Convention, the Court observes that in the instant case the applicant failed to submit precise data to substantiate her allegation of discrimination. In any event, the Court observes that the law on the re‑opening of pension proceedings was at the relevant time implemented universally throughout the country. The contested measure was general and aimed at an unspecified group of persons benefiting from public funds in accordance with the principle of equality.
Even if there had been a difference in the treatment of “EWK” pensioners in the Podkarpacki region, and particularly the applicant, the Court observes that it cannot be excluded that such difference may have resulted from the more efficient practices implemented by the local social security authority for verifying pension applications as compared to other regions. In particular, there is no evidence which would indicate that persons in receipt of the “EWK” pensions in the Podkarpacki region were deliberately targeted by the State authorities.
101. In consequence, this complaint must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
102. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
103. The applicant claimed 78,209 Polish zlotys (PLN) (currently corresponding to approximately 18,000 euros (EUR)) in respect of pecuniary damage. This amount comprised: (1) an equivalent of the “EWK” pension, which was not paid to her in the period from June until September 2002, (2) the difference between the “EWK” pension, which she did not receive and the special pre-retirement benefit, paid to her from October 2002 until March 2007, and (3) the difference between the “EWK” pension which she did not receive and the special pre-retirement benefit due for the period from April 2007 until October 2015, when the applicant qualified for a retirement pension under the general scheme.
The applicant also claimed 25,000 Polish zlotys (PLN) in respect of non‑pecuniary damage.
104. The Government submitted that there was no causal link between the alleged violation and the pecuniary damage claimed. In respect of the claim for non-pecuniary damage, the Government observed that it was exorbitant. If the Court were to find a violation in the present case, the Government requested it to rule that that finding constituted in itself sufficient just satisfaction.
105. The Court finds that the applicant was deprived of her income in connection with the violation found and must take into account the fact that she undoubtedly suffered some pecuniary and non-pecuniary damage (see Koua Poirrez, cited above, § 70). Making an assessment on an equitable basis, as is required by Article 41 of the Convention, the Court awards the applicant EUR 15,000 to cover all heads of damage.
B. Costs and expenses
106. The applicant did not make a claim for any costs and expenses incurred.
C. Default interest
107. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaint under Article 6 of the Convention concerning the principle of legal certainty, the complaint under Article 8 of the Convention concerning the loss of the “EWK” pension, and the complaint under Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;
2. Holds unanimously that it is not necessary to examine separately the applicant’s complaints under Article 6 of the Convention concerning the principle of legal certainty and under Article 8 of the Convention concerning the loss of the “EWK” pension;
3. Holds by four votes to three that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
4. Holds by four votes to three
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 15,000 (fifteen thousand euros), in respect of pecuniary and non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
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