FOURTH SECTION
 
 
 
 
 
 
CASE OF SASOR v. POLAND
 
(Application no. 6112/05)
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
4 December 2012
 
 
FINAL
 
04/03/2013
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Sasor v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Ineta Ziemele, President,
 David Thór Björgvinsson,
 Päivi Hirvelä,
 Zdravka Kalaydjieva,
 Vincent A. De Gaetano,
 Paul Mahoney,
 Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 13 November 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 6112/05) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Barbara Sasor (“the applicant”), on 2 February 2005. 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. 3. The applicant alleged, in particular, that the ex officio reopening of the social security proceedings concerning her right to an early-retirement pension, which resulted in the quashing of the final decision granting her a right to a pension, was in breach of Article 1 of Protocol No. 1 to the Convention. 4. On 20 May 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1962 and lives in Mielec. 6. The applicant is married with a child. Prior to her application for an early-retirement pension she had been employed until 1996 and paid social security contributions to the State. A. Proceedings concerning the grant and revocation of the EWK pension
7. On 23 April 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 her application for a pension, the applicant submitted, among other documents concerning her son’s health condition, a medical certificate issued by a specialist centre for nephrology on 16 March 2001. The certificate stated that the child (born in 1989) was in need of his parent’s constant care. 9. On 17 May 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an early‑retirement pension as of 1 April 2001 in the net amount of 527.64 Polish zlotys (PLN). 10. On 19 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, 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 Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki) (“the 1989 Ordinance”). 11. 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 applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights. 12. On 10 October 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) quashed the SSB’s decision and restored the applicant’s right to a EWK pension. The court relied on experts’ opinions who stressed that the applicant’s son suffered from acute glomerulonephritis and nocturnal enuresis. 13. The SSB appealed against the first-instance judgment. 14. On 4 March 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and upheld the SSB’s decision of 19 September 2002. 15. On 7 October 2004 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal. B. The applicant’s financial situation following the revocation of the EWK pension
16. Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board, despite the revocation of her right to an early-retirement pension. 17. The Government submitted that prior to the grant of a EWK pension the applicant had not worked. Her last employment contract had been terminated in 1996. After the revocation of the EWK pension the applicant had not worked. The applicant’s husband worked, as did her son (from 2005). 18. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation. 19. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2022. C. Other EWK cases pending before the Court
20. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region. 21. Out of all applications lodged with the Court, about twenty-four applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case. 22. One hundred-and-four applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eighty-one applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Social security system
23. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 31-34, 15 September 2009. 24. The social security scheme for farmers is regulated by the Farmers’ Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników). 25. The reopening of the proceedings concerning the early-retirement pension is regulated in section 114 (1) of the the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”), which at the relevant time read as follows:
“The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
On 1 July 2004 a new subparagraph 114 (1)(a) was added, which reads as follows:
“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”
B. Cassation appeal
26. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a second-instance court. A party had to be represented by an advocate or a legal adviser. 27. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1)  a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2)  a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
28. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find non-conformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was well-founded the Supreme Court could also amend the impugned judgment and adjudicate on the merits. C. Constitutional Court’s judgments
1. Judgment no. K 18/99
29. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 (3) of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an age-limit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution. 30. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 (3) of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits. 2. Judgment no. K5/11
31. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted. 32. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
33. 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. The 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 her possessions. No one shall be deprived of her 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.”
A. Admissibility
1. The Government’s preliminary objections
(a)  Abuse of the right of an individual application
(i)  The parties’ submissions
34. 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 her social security status and the financial situation of her family. 35. In particular, the Government argued that the applicant misled the Court in representing herself as a person who wished to stay at home to take care of her son. However, at the time when the applicant had applied for an EWK pension she had already been unemployed. In the Government’s view, the applicant had sought an early-retirement pension not because she had wished to take care of her child at home but because she had wanted to have another source of income. 36. The applicant contested the Government’s submissions and argued that her application had been truthful and sincere. (ii)  The Court’s assessment
37. 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). 38. 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 possible intentions behind her decision to take advantage of the EWK early-retirement pension scheme. It has not been disputed that the applicant had not been employed when she was officially judged eligible to obtain an EWK pension. 39. The Government’s preliminary objection should therefore be dismissed. (b)  Non-exhaustion of domestic remedies
(i)  The parties’ submissions
40. The Government argued that the applicant had not exhausted the domestic remedies available to her, as required by Article 35 § 1 of the Convention. 41. 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 29 and 30 above). 42. In their further submissions, the Government referred to the Constitutional Court’s judgment of 28 February 2012 (see paragraphs 31 and 32 above). 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/herself of the possibility of lodging a constitutional complaint. 43. The applicant did not comment on this objection. (ii)  The Court’s assessment
44. 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). 45. 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). 46. 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. 47. 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 paragraph 25 and 42 above). While it is true that the Ombudsman’s application was successful (see paragraph 32 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. 48. 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.

Article of the Convention at issue: Article 1
Outcome: violation