EHRM, 02-10-2012, nr. 5744/05

The Government submitted that the present application constituted an abuse of the right of individual application under Article 35 § 3 of the Convention in that the applicant had misrepresented to the Court his social security status and the financial situation of his family.

In particular, the Government argued that the applicant misled the Court in representing himself as a person who had been deprived of a pension, unemployment allowance and health insurance thus free medical care for him and his sick child. In reality, the applicant had been covered by health insurance throughout the proceedings concerning the revocation of the pension. In addition, his daughter was covered by social insurance for farmers. Furthermore, the applicant failed to disclose a source of income, namely his wife's agricultural pension and income obtained from the farm.

The applicant contested the Government's submissions and argued that his application had been truthful and sincere.

The Court considers that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1206, §§ 53–54; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April 2000; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X or Rehak v. the Czech Republic, (dec.), no 67208/01, 18 May 2004).

The Court notes that in the present case the gist of the Government's arguments does not actually concern ‘untrue facts’ allegedly adduced by the applicant before the Court. Rather, their objection is based on their own perception of the applicant's assessment of his overall financial situation after the revocation of the pension. It has not been disputed that the applicant quit his job when he was officially judged eligible to obtain an EWK pension and only resumed full-time employment after his pension had been withdrawn.

The Government's preliminary objection should therefore be dismissed.

The Government argued that the applicant had not exhausted the domestic remedies available to him, as required by Article 35 § 1 of the Convention.

They submitted that the applicant should have made an application to the Constitutional Court challenging the compatibility of the relevant social security provisions with the Constitution. They relied on a judgment delivered by the Constitutional Court on 4 January 2000 (see paragraphs 32 and 33 above).

In their further submissions, the Government referred to the Constitutional Court's judgment of 28 February 2012 (see paragraphs 34 and 35). They maintained that even though the decisions issued in the EWK cases had been based on section 114 (1) of the 1998 law and not on section 114 (1)(a), the applicant should nevertheless have availed himself of the possibility of lodging a constitutional complaint.

The applicant did not comment on this objection.

The Court reiterates that it has already held that in Poland a constitutional complaint was an effective remedy for the purposes of Article 35 § 1 of the Convention only in situations where the alleged violation of the Convention resulted from the direct application of a legal provision considered by the complainant to be unconstitutional (see, among other authorities, Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003).

Furthermore, Article 35 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available not only in theory but also in practice at the relevant time, that is to say that it was accessible, was capable of providing redress in respect of the applicant's complaints, and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII).

In so far as the Government referred to the Constitutional Court's judgment of 4 January 2000, the Court observes that the Government failed to indicate which provision of the 1998 Law should have been challenged by the applicant before the Constitutional Court. They have merely stated that the applicant could have contested ‘the relevant social security provisions’ without specifying any constitutional provision that could have been relied on in the applicant's situation. Furthermore, they have not adduced any relevant case-law of the Constitutional Court which would have demonstrated that such complaint, in the circumstances of the applicant's case, offered any prospects of success.

As regards the second limb of the Government's objection, the Court observes that, as the Government have acknowledged, section 114(1)(a) of the 1998 Law was not applicable in the present case. The SSB's decision to reopen the proceedings concerning the relevant benefit was based on section 114(1) (see paragraphs 28 and 45). While it is true that the Ombudsman's application was successful (see paragraph 35 above), this does not of itself indicate that a hypothetical complaint lodged by the applicant would have had a similar effect. Moreover, it should be noted that the Ombudsman's challenge was examined nearly ten years after the events complained of in the present case. In reality, the Government's objection is based on a theoretical and retrospective, and therefore highly speculative, comparison between the applicant's situation at the material time and recent developments in the Constitutional Court's case-law.

In consequence, the Court considers that in the present case a constitutional complaint cannot be considered with a sufficient degree of certainty to have been a remedy offering reasonable prospects of success. For these reasons, the Government's plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed.

The Government submitted that should the Court consider that the cassation appeal had not been an effective remedy in the instant case, the calculation of the time-limit should start from the date on which the judgment of the Court of Appeal had been given. If that decision had been given more than six months before the date of introduction of the application to the Court, the application should be considered as having been lodged out of time and rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

The applicant contested the argument and claimed that he had complied with the six-month requirement.

The Court reiterates that the object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Varnava and Others v. Turkey [GC], nos. 16064/90; 16065/90; 16066/90; 16068/90; 16069/90; 16070/90; 16071/90; 16072/90 and 16073/90, §§ 156 et seq., ECHR 2009-…; and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

The final decision for this purpose is the decision taken in the process of exhaustion of effective domestic remedies which exist in respect of the applicant's complaints (see Kozak v. Poland, no. 13102/02, § 64, 2 March 2010, with further references).

The Court further notes that there were essentially two types of decisions terminating the proceedings in the EWK cases. First, in all cases where the applicants lodged cassation appeals in accordance with the procedural requirements the Supreme Court either examined them on the merits as in Moskal (cited above, § 24) or, as in the instant case, decided not to entertain them. Second, in cases where the applicants desisted from lodging cassation appeals the final decisions were those given by the courts of appeal.

The cassation appeal was thus a remedy that had been used by the applicant in the lead Moskal case as well as by ninety-six other applicants whose cases are pending before the Court regarding the same subject-matter. Although the effectiveness of this remedy has been contested by certain applicants, the Court nevertheless considers that the applicant in the instant case should not be penalised for having tried to file a cassation appeal with the Supreme Court in order to avoid any risk of having his case rejected by the Court for non-exhaustion of domestic remedies.

Accordingly the final decision in the case was given by the Supreme Court on 9 July 2004 and served on the applicant on 26 July 2004 whereas the applicant lodged his application with the Court on 24 January 2005.

That being so, the Court concludes that the applicant complied with the six-month term laid down in Article 35 § 1 and that the Government's objection should be dismissed.

The parties agreed that the decisions of the Rzeszów Social Security Board of 18 September 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 his possessions within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court sees no reason to hold otherwise.

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).

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 paragraphs 8 and 9 above). Before being invalidated the decision of 2001 had undoubtedly produced effects for the applicant and his family.

It must be stressed that the delay with which the authorities reviewed the applicant's dossier was relatively long. The decision was left in force for sixteen 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 12 above). Even though the applicant had an opportunity to challenge the Social Security Board's decision of 2002 in judicial review proceedings, his right to the pension was determined by the courts more than twenty one months later and during that time he was not in receipt of any welfare benefit (see paragraphs 17 and 19 above).

In examining the conformity of these events with the Convention, the Court reiterates the particular importance of the principle of good governance. It requires that where an issue pertaining to the general interest is at stake, especially when it affects fundamental human rights, including property rights, the public authorities must act promptly and in an appropriate and above all consistent manner (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000-I; Öneryıldız v. Turkey [GC], no. 48939/99, § 128, ECHR 2004-XII; Megadat.com S.r.l. v. Moldova, no. 21151/04, § 72, 8 April 2008; and Rysovskyy v. Ukraine, no. 29979/04, § 71, 20 October 2011). It is desirable that public authorities act with the utmost care, in particular when dealing with matters of vital importance to individuals, such as welfare benefits and other such rights. In the present case, the Court considers that having discovered their mistake, the authorities failed in their duty to act speedily and in an appropriate and consistent manner (see Moskal, cited above, § 72).

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 63 above) did not mitigate sufficiently the consequences for the applicant flowing from the interference in his case. The Court notes in this connection that the applicant, after his right to the EWK pension had been confirmed by the authorities, decided to resign from his employment.

It should be further observed that as a result of the impugned measure, the applicant was faced, without any transitional period enabling him to adjust to the new situation, with the total loss of his early-retirement pension, which constituted his main source of income. Moreover, the Court is aware of the potential risk that, in view of his age and the economic reality in the country, particularly in the undeveloped Podkarpacki region, the applicant might have considerable difficulty in securing new employment. Indeed, the applicant has not yet been able to find a full-time job.

The Government submitted that the applicant's wife owned a farm which had been a source of income for him. However, the Court considers that this fact is not decisive for the matter at hand, namely whether the revocation of the EWK pension placed an excessive burden on the applicant as an individual in his own right irrespective of third party financial support.

In so far as the Government listed various benefits available in Poland, the Court considers that they have failed to specify which of those benefits, if any, were available in the applicant's situation.

In view of the above considerations, the Court does not see any reason to depart from its ruling in the leading case concerning EWK pensions, Moskal v. Poland, and finds that in the instant case 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.