ITEMID: 001-121267
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: CICHOPEK AND OTHERS v. POLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. A list of all the applicants is set out in the appendix.
2. The so-called “public security authorities” (“aparat bezpieczeństwa publicznego” or “organy bezpieczeństwa publicznego), i.e. a Polish communist secret police apparatus, operated in 1944-1990.
The apparatus, which was reshaped several times, consisted of different services and institutions, comprising the political police and special armed forces. It was patterned on the NKVD (Народный комиссариат внутренних дел/Narodnyy Komissariat Vnutrennikh Del, i.e. the Soviet People’s Commissariat for Internal Affairs) and the KGB (Комитет государственной безопасности/Komitet Gosudarstvennoy Bezopasnosti, i.e. the Committee for State Security) and established (under the supervision of the NKVD) in 1944 with a view to securing Communist rule and combating, suppressing and eliminating groups of political opposition, including the post-war underground resistance against Communism and the Polish Church. In the 1950s these organs were in charge of prisons and labour camps; at that time, they were also competent to conduct criminal investigations under the rules of criminal procedure (see Domalewski v. Poland (dec.), no. 4610/97, ECHR 1999-V).
From 1956 onwards, when the level and nature of repression changed, their tasks involved in the protection of the communist system included, among other things, the control and infiltration of Polish society secured by its own members and through a system of paid or unpaid informers and secret collaborators, denunciation, monitoring of persons in, or cooperating with, the opposition, political opponents, priests and other persons suspected of being in any way associated with anti-communist ideas or critical of the communist party’s programme, its role and members
3. The general information concerning the public security service published on the official website of the Institute of the National Remembrance - Commission for the Prosecution of Crimes against the Polish Nation (Instytut Pamięci Narodowej – Komisja Ścigania Zbrodni przeciwko Narodowi Polskiemu – “the IPN”) reads, in so far as relevant, as follows:
“Since 1944 until 1990 the functionaries of the security services constituted “the armed arm of the communist party”. The main goal of the services was to protect the communists from society and to eliminate opposition.
...
First, the Security Services operated within the Ministry of Public Security which was created in summer 1944. The executive staff of the Ministry had been trained in NKVD school in Kuibyshev (USSR). Apart from the central office, the ‘soviet advisers’ were sent to all newly-created regional Offices of Public Security throughout Poland.
The official activity of the Ministry of Public Security started on 1 January 1945 and its wide range of power was not limited by law. The Ministry focused on achieving goals set by the Polish Workers’ Party (PPR) [Polska Partia Robotnicza] and later the Polish United Workers’ Party (PZPR) [Polska Zjednoczona Partia Robotnicza]. At the peak of its expansion in 1953 there were 33,000 functionaries working within the ministry structures. Additionally, a network of 73,000 informers (in the mid 1950s) collaborated with the ministry. The informers were recruited by means of brutal intimidation or promises of financial gain. Nevertheless, some of the informers, especially members of the communist party, volunteered for the work.
Offices of Public Security and their informants kept under surveillance the political parties, national and local public administration, social and religious organisations, factory workers and, in general, social attitudes. One third of adult Poles were registered in the ministry’s files because they constituted ‘a dubious element’.
In 1954 the Ministry of Public Security was replaced by the Ministry of Interior Affairs (MSW) and the Committee of Public Security Affairs. In 1956 the Committee was disbanded and its competences and staff transferred to the Ministry of [the] Interior ....
The Security Service (SB) operated in Poland between 1956 and 1990. The fall of the communist system in Poland in 1989 brought an end to the existence of this political police and organ of terror, which was hostile to Polish society throughout its existence. ...”
4. The Security Service operated through the following main structures: Department I (for intelligence), Department II (for counter-intelligence); Department III (for anti-State activities against the country in the sphere of ideology, culture and education; the tasks involved, inter alia, infiltration of artistic, intellectual, academic, journalist and similar circles, finding secret collaborators within those groups as well as monitoring of targeted persons), Department IV (church and religious associations; the tasks involved infiltration of targeted groups, monitoring etc.), Department V (for protection of industry and anti-State activities in industry and within workers unions and circles), the Office of Foreign Passports (Biuro Paszportów), the so-called Bureau "A" (cipher); Bureau "B" (observation) and Bureau "W" (oversight of correspondence), Bureau “T” (operational techniques). The subordinate units at local level had departments organised in the same way. In 1983-1990 they were organised in regional (wojewódzkie) and district (rejonowe) offices for internal affairs (urzędy spraw wewnętrznych).
5. Following the fall of Communism in Poland, the Security Service was dissolved by virtue of the law of 6 Apri1 1990 on the Office for State Protection (ustawa o Urzędzie Ochrony Państwa) (“the 1990 Act”), a new body responsible for intelligence and counter-intelligence. At that time the Security Service comprised around 30,000 persons, including some 24,000 functionaries. They could be re-employed by the Office for State Protection on condition that they successfully passed a vetting procedure, which some 14,000 officers underwent. 10,439 persons were eventually found suitable for re-employment and 3,595 were vetted negatively and not retained (see also paragraphs 57-62 below).
6. On 23 January 2009 Parliament enacted the Act on amendments to the law on old-age pensions of professional soldiers and their families and to the law on old-age pensions of functionaries of the police, the Internal Security Agency, the Intelligence Agency, the Military Counter-Intelligence Service the Military Intelligence Service, the Central Anti-Corruption Bureau, the Border Guard, the Government Protection Bureau, the State Fire Service, the Prison Service and their families (ustawa o zmianie ustawy o zaopatrzeniu emerytalnym żołnierzy zawodowych oraz ich rodzin oraz ustawy o zaopatrzeniu emerytalnym funkcjonariuszy Policji, Agencji Bezpieczeństwa Wewnętrznego, Agencji Wywiadu, Służby Kontrwywiadu Wojskowego, Służby Wywiadu Wojskowego, Centralnego Biura Antykorupcyjnego, Straży Granicznej, Biura Ochrony Rządu, Państwowej Straży Pożarnej i Służby Więziennej oraz ich rodzin – “the 2009 Act”). The 2009 Act, which entered into force on 16 March 2009, introduced new rules for the calculation of the pensions of former functionaries of the State security service into the law of 18 February 1994 on old-age pensions of functionaries of the police, the Internal Security Agency, the Intelligence Agency, the Military Counter-Intelligence Service, the Military Intelligence Service, the Central Anti-Corruption Bureau, the Border Guard, the Government Protection Bureau, the State Fire Service, the Prison Service and their families (ustawa o zaopatrzeniu emerytalnym funkcjonariuszy Policji, Agencji Bezpieczeństwa Wewnętrznego, Agencji Wywiadu, Służby Kontrwywiadu Wojskowego, Służby Wywiadu Wojskowego, Centralnego Biura Antykorupcyjnego, Straży Granicznej, Biura Ochrony Rządu, Państwowej Straży Pożarnej i Służby Więziennej oraz ich rodzin –“the 1994 Act”). In particular, one of the coefficients relevant for the calculation of pensions of former functionaries was lowered from 2.6% to 0.70% for each year of service with the former communist State security authorities in the period from 1944 to 1990 (see also paragraphs 68-72 below).
For the purposes of the 2009 Act, the State security authorities are those listed in the law of 18 October 2006 on the disclosure of information of documents of the State security authorities in the years 1944-1990 and the content of such documents (ustawa o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat 1944-1990 oraz treści tych dokumentów – “the 2006 Act” (see also paragraphs 66-67 below).
8. The applicant, Mr Adam Cichopek, is a Polish national who was born in 1943. He lives in Chrzanów.
9. From 1969 to 1990 the applicant served in the Security Service, holding various posts. Starting as an operational inspector in 1969, he was promoted to the post of Deputy Commandant of the District Office for Internal Affairs (Rejonowy Urząd Spraw Wewnętrznych) responsible for the Security Service. In 1990, on his dismissal from service, he held the rank of major.
10. On 4 November 2009 the Director of the Board for Pensions of the Ministry of the Interior and Administration (Dyrektor Zakładu Emerytalno-Rentowego Ministerstwa Spraw Wewnętrznych i Administracji), pursuant to section 15b read in conjunction with section 32(1)(1) of the 1994 Act and on the basis of information received from the IPN (see also paragraphs 70-72 below), issued a decision on the re-assessment of the applicant’s pension, whereby his benefit was reduced from 3,038.38 Polish zlotys (PLN) to PLN 1,652.60 monthly. According to the applicant, after taxation, the net amount of his current pension was PLN 1,380.87.
11. The applicant lodged an appeal against that decision with the Warsaw Regional Court – Social Security Division (Sąd Okręgowy – Wydział Ubezpieczeń Społecznych). He sought to have his previous pension restored, submitting that the impugned decision was based on legal provisions which were incompatible with Articles 2, 10, 31 § 3 and 31 of the Constitution (see also paragraphs 77-84 below) and that it had been contrary to international law.
12. On 23 April 2012 the Regional Court dismissed his appeal as unfounded. Relying on the Constitutional Court’s judgment of 24 February 2010, whereby a challenge to the constitutionality of the 2009 Act had meanwhile been examined and rejected (see also paragraphs 85-106 below), the court held that the relevant provisions of the 2009 Act had been applied correctly in the applicant’s case.
13. The applicant lodged an appeal on 1 June 2012. According to the most recent information supplied by the applicant on 31 December 2012, the proceedings were still pending before the Warsaw Court of Appeal (Sąd Apelacyjny) and no hearing date had yet been set.
14. The application was lodged by eleven Polish nationals: Mr Janusz Romański (“the first applicant”) was born in 1937, Mr Andrzej Gomuliński (“the second applicant”) was born in 1943, Ms Barbara Gomulińska (“the third applicant”) was born in 1944, Ms Janina Męcik (“the fourth applicant”) was born in 1942, Ms Danuta Makuch (“the fifth applicant”) was born in 1945, Mr Lech Męcik (“the sixth applicant”) was born in 1938, Ms Wanda Wacławik (“the seventh applicant”) was born in 1942, Ms Stanisława Fortuna (“the eighth applicant”) was born in 1931, Ms Elżbieta Duda (“the ninth applicant”) was born in 1941, Ms Wiesława Giera (“the tenth applicant”) was born in 1936 and Ms Wiesława Przewrocka (“the eleventh applicant”) was born in 1946. The applicants, except for the fourth applicant who lives in Mysiadło, live in Warsaw. In the proceedings before the Court they were represented by Ms M. Gąsiorowska, a lawyer practising in Warsaw.
15. Except for the first applicant who was positively vetted in 1990, the remaining applicants were not subjected to the vetting procedure (see also paragraph 5 above and paragraphs 57-62 below).
16. On 16 November 2009 the Director of the Board for Pensions of the Ministry of the Interior and Administration, pursuant to section 15b read in conjunction with section 32(1)(1) of the 1994 Act and on the basis of information received from the IPN, issued a decision on the re-assessment of the first applicant’s pension, whereby his benefit was reduced from PLN 2,365.95 (gross) to PLN 1,676.76 monthly. After taxation, the net amount of his current pension was PLN 1,399.85.
17. Similar decisions reducing their pensions were issued in respect of the remaining applicants:
– on 22 October 2009 the second applicant’s benefit was reduced from PLN 3,273. 85 (gross) to PLN 1,411.68 (gross). After taxation, the net amount of his current pension was PLN 1,186.63;
– on 29 October 2009 the third applicant’s retirement pension was reduced to PLN 1,370.97 (gross)/PLN 1,308,97 (net); the applicant failed to indicate the previous amount. However, at the same time, payment of this benefit was suspended because she had also the right to a disability pension, which was more advantageous. The amount of her current disability pension was PLN 1,563.70;
– on 9 November 2009 the fourth applicant’s retirement pension was reduced to PLN 1,500.88 (gross); the applicant failed to indicate the previous amount. However, at the same time, payment of this benefit was suspended because she had also the right to a disability pension, which was more advantageous. The amount of her current disability pension was PLN 1,512.99 (gross);
– on 16 October 2009 the fifth applicant’s benefit was reduced to PLN 1,063.69 (gross)/PLN 904.93 (net); the applicant failed to indicate the previous amount;
– on 9 November 2009 the sixth applicant’s benefit was reduced from PLN 3,895.61(gross) to PLN 2,892.73 (gross);
– on 3 November 2009 the seventh applicant’s benefit was reduced from PLN 2,478.47 (net) to PLN 1,766.51 (gross)/PLN 1,472.52 (net);
– on 13 October 2009 the eight applicant’s benefit was reduced to PLN 1,429.74 (gross); the applicant failed to indicate the previous amount;
– on 27 October 2009 the ninth applicant’s retirement pension was reduced from PLN 2,689.44 to PLN 1,243.87 but, at the same time, payment of this benefit was suspended because she had also the right to a disability pension, which was more advantageous. The amount of her current disability pension was PLN 1,344.72;
– on 19 October 2009 the tenth applicant’s old-age pension was reduced from PLN 2,407.22 to PLN 1,687.11;
– on 2 December 2009 the eleventh applicant’s old-age pension was reduced from PLN 1,671.45 to PLN 1,002.79.
18. The applicants on various dates appealed to the Warsaw Regional Court – Social Security Division, submitting in essence that the social security authority had misinterpreted the provisions of the 2009 Act and that the impugned decisions were unlawful and contrary to the Constitution and international treaties ratified by Poland. In particular, they relied on Articles 2, 8, 10 30 and 32 of the Constitution, asserting that the legislature had overstepped its competence because it had imposed collective punishment on them, that it had failed to respect the principle of protection of acquired rights and that they were discriminated against on account of their service in the State security authorities. They also invoked Articles 6, 7, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.
19. The applicants have not informed the Court about the outcome of the appeal proceedings, except for the second applicant who produced a copy of the Supreme Court’s decision of 23 November 2012, refusing to entertain his cassation appeal against the judgment of the Warsaw Court of Appeal. It emerges from that decision that the Warsaw Regional Court dismissed the applicant’s appeal against the pension decision on 16 May 2011 and that his appeal against that judgment was dismissed by the Warsaw Court of Appeal on 12 January 2012.
20. The applicant, Ms Ewa Giętkowska, is a Polish national born in 1954 and living in Serock. In the proceedings before the Court she was represented by Mr S. Pikulski, a lawyer practising in Warsaw.
21. From 16 July 1984 to 1 October 1989 the applicant was employed in the Office of Foreign Passports of the Warsaw District Headquarters of the Civic Militia. From 2 October 1989 to 15 July 2003 she was a policewoman in the Warsaw-Ochota District Police Headquarters and then in the Warsaw-City District Police Headquarters. She worked in the Investigation Department and the Homicide Department. The applicant retired on 15 July 2003.
22. On 19 October 2009 the Director of the Board for Pensions of the Ministry of the Interior and Administration, pursuant to section 15b read in conjunction with section 32(1)(1) of the 1994 Act and on the basis of information received from the IPN, issued a decision on the re-assessment of the applicant’s pension, whereby her benefit was reduced from PLN 3,010 to PLN 2,462.95 monthly. That meant that instead of receiving as before 78.84% of her pension’s basis of assessment, she received 52.80% of that amount.
23. On 12 November 2009 the applicant appealed to the Warsaw Regional Court – Social Security Division. The court dismissed her appeal on 7 January 2011. The applicant lodged an appeal against the judgment. On 7 July 2011 the Warsaw Court of Appeal rejected the appeal.
24. On 10 October 2011 the applicant lodged a cassation appeal (skarga kasacyjna). The Court of Appeal rejected it as inadmissible on 17 October 2011. The applicant’s further interlocutory appeal (zażalenie) against that decision was dismissed by the Supreme Court on 3 February 2012.
25. The applicant is a Polish national, born in 1954 and living in Łódź. In the proceedings before the Court he was represented by Mr T. Srogosz, a lawyer practising in Częstochowa.
26. From 16 April 1976 to 30 May 1999 the applicant was a functionary of the Civic Militia and, after having been positively vetted in 1990, of the Police (Policja). He began his career from a clerk in the field of operational techniques (referent techniki operacyjnej) in the Office of Foreign Passports and, until 31 July 1990, he held various posts in units of Bureau “B” and Bureau “T” of the Security Service (see also paragraph 4 above). In JuneSeptember 1982 the applicant participated in a special course for the Security Service. In 1983-1986 he followed extramural studies at the Legionowo Officer Academy of the Ministry of the Interior (Wyższa Szkoła Oficerska Ministerstwa Spraw Wewnętrznych), an academy which trained officers for the Security Service.
27. On 1 June 1999 the applicant retired and was granted the right to an old-age pension corresponding to 63.19% of its basis of assessment.
28. On 16 November 2009 the Director of the Board for Pensions of the Ministry of the Interior and Administration, pursuant to section 15b read in conjunction with section 32(1)(1) of the 1994 Act and on the basis of information received from the IPN, issued a decision on the re-assessment of the applicant’s pension, whereby his benefit was reduced from PLN 3,318.51 gross to PLN 2,549.03 gross monthly.
29. In a subsequent decision, issued on 17 December 2009, the applicant’s pension was assessed at PLN 2,549.03 gross and PLN 2,104.62 net.
30. The applicant appealed against both decisions to the Warsaw Regional Court – Social Security Division. He argued, among other things, that they were in breach of the constitutional principles of nondiscrimination, protection of acquired rights and presumption of innocence, and also incompatible with Articles 6 and 7 of the Convention and Article 1 of Protocol No. 1 to the Convention.
The court, noting that from 8 January 1978 to 31 July 1990 the applicant had been a functionary of the Security Service, which justified the application of the 2009 Act, and having regard to the Constitutional Court’s judgment of 24 February 2010 (see paragraphs 91-106 below), rejected the appeal on 15 July 2011. The judgment, following the applicant’s further appeal, was upheld by the Warsaw Court of Appeal on 5 April 2012. The court stressed that the amount of the applicant’s benefit – even after the reduction – remained higher that the average old-age pension under the general social security scheme.
31. The applicant is a Polish national born in 1948 and living in Poznań. In the proceedings before the Court he was represented by Mr P. Sowisło, a lawyer practising in Poznań.
32. The applicant was a functionary of the Security Service from 16 December 1973 to 31 March 1990. On the latter date he retired.
33. On 27 October 2009 the Director of the Board for Pensions of the Ministry of the Interior and Administration, pursuant to section 15b read in conjunction with section 32(1)(1) of the 1994 Act and on the basis of information received from the IPN, issued a decision on the re-assessment of the applicant’s pension, whereby his benefit was reduced from PLN 2,163.42 to PLN 1,537.78 monthly.
34. The applicant appealed to the Warsaw Regional Court – Social Security Division, arguing that the provisions of the 2009 Act on which the impugned decision was based were unconstitutional. In particular, he alleged a breach of the principles of the protection of acquired rights, the separation and balance of powers, proportionality, equality before the law and non-discrimination.
On 18 April 2011 the Regional Court, relying on the Constitutional Court’s judgment of 24 February 2010, dismissed the appeal. The applicant appealed.
On 22 February 2012 the Warsaw Court of Appeal heard the appeal and partly amended the first-instance judgment, holding that in respect of the period from 1 October 1975 to 1 August 1978, during which the applicant had studied at the Legionowo Officer Academy of the Ministry of the Interior, the relevant coefficient for the pension’s basis of assessment should be 2.6%, not 0.7%.
The applicant has not informed the Court of the current, increased amount of his old-age pension.
35. The applicant is a Polish national, born in 1949 and living in Warsaw. In the proceedings before the Court the applicant was represented by Mr D. Sucholewski, a lawyer practising in Warsaw.
36. The applicant was a functionary of the Security Service from 6 December 1976 to 31 July 1990.
On 16 May 1990 the Vetting Commission for Central Personnel gave a positive opinion on the applicant’s suitability for re-employment in the new state security institutions (see also paragraph 5 above and paragraphs 57-62 below). She continued service in the Office for State Protection until 30 June 1998, when she retired.
37. On 16 November 2009 the Director of the Board for Pensions of the Ministry of the Interior and Administration, pursuant to section 15b read in conjunction with section 32(1)(1) of the 1994 Act and on the basis of information received from the IPN, issued a decision on the re-assessment of the applicant’s pension, whereby her benefit was reduced from PLN 2,267.72 to PLN 1,787.64 monthly.
38. On 24 November 2009 the applicant appealed to the Warsaw Regional Court – Social Security Division, maintaining that the provisions of the 2009 Act on which the impugned decision was based were unconstitutional. In particular, she alleged a breach of the principles of the protection of acquired rights, the separation and balance of powers, proportionality, equality before the law and non-discrimination. She has not informed the Court of the outcome of the proceedings.
39. The applicant is a Polish national born in 1934 and living in Suwałki. In the proceedings before the Court he was represented by Ms B. Świątkiewicz, a lawyer practising in Warsaw.
40. The applicant was a functionary of the Security Service from 1 May 1960 to an unspecified date in 1990. He held various posts, beginning his career as an operational inspector. On the termination of service he held the rank of lieutenant colonel. The applicant was granted the right to a disability pension on 30 April 1990. He did not undergo the vetting procedure.
41. On 26 October 2009 and 17 December 2009 the Director of the Board for Pensions of the Ministry of the Interior and Administration, pursuant to section 15b read in conjunction with section 32(1)(1) of the 1994 Act and on the basis of information received from the IPN, issued a decision on the re-assessment of the applicant’s pension, whereby his benefit was reduced from PLN 4,365.30 to PLN 2,183.96 gross (1,982.50 net) monthly.
42. The applicant appealed against both decisions to the Warsaw Regional Court – Social Security Division, arguing that the provisions of the 2009 Act on which the impugned decision was based were unconstitutional. In particular, he alleged a breach of the principles of the protection of acquired rights, the separation and balance of powers, proportionality, equality before the law, non-discrimination and the right to social security. He submitted that the 2009 Act imposed collective punishment on former functionaries of the Security Service and that they were refused the right to a hearing and could not defend themselves against charges of a criminal nature laid against them in the preamble to that Act. The applicant also invoked Articles 6 and 7 of the Convention and Article 1 of Protocol No.1 to the Convention.
On 30 May 2011 the Regional Court, relying on the Constitutional Court’s judgment of 24 February 2010 (see paragraphs 91-106 below) dismissed the appeal. The applicant appealed to the Warsaw Court of Appeal. He has not informed the Court of the outcome of the proceedings.
43. The applicant is a Polish national, born in 1950 and living in Rogoźnik. In the proceedings before the Court she was represented by Ms A. K. Wojcieszuk-Kwiatkowska, a lawyer practising in Katowice.
44. The applicant was a functionary of the Security Service from 1 January 1970 to 31 May 1987. She held various posts, starting her career as a typist in the Investigation Department of the Katowice Security Service. On the termination of her service, she was a senior clerk in the field of operational techniques. She retired on 23 June 1987.
45. On 4 November 2009 the Director of the Board for Pensions of the Ministry of the Interior and Administration, pursuant to section 15b read in conjunction with section 32(1)(1) of the 1994 Act and on the basis of information received from the IPN, issued a decision on the re-assessment of the applicant’s pension, whereby her benefit was reduced from 52% to 31.15% of the pension’s basis of assessment. This corresponded to PLN 862,70 monthly.
46. The applicant appealed to the Warsaw Regional Court – Social Security Division, maintaining that the provisions of the 2009 Act on which the impugned decision was based were unconstitutional and in breach of the Convention.
On 25 May 2011 the Regional Court, relying on the Constitutional Court’s judgment of 24 February 2010 (see paragraphs 91-106 below), dismissed the appeal. The applicant’s appeal against the judgment was heard, and rejected, by the Warsaw Court of Appeal on 15 March 2012.
47. The applicant is a Polish national born in 1946 and living in Hajnówka. In the proceedings before the Court he was represented by Ms Z. Daniszewska-Dek, a lawyer practising in Białystok.
48. The applicant was a functionary of the Security Service from 1 November 1970 to 1 September 1975 and from 1 August 1978 to 1 January 1990.
49. On 27 October 2009 the Director of the Board for Pensions of the Ministry of the Interior and Administration, pursuant to section 15b read in conjunction with section 32(1)(1) of the 1994 Act and on the basis of information received from the IPN, issued a decision on the re-assessment of the applicant’s pension, whereby his benefit was reduced from PLN 2,728.87 to PLN 1,509.28 monthly.
50. The applicant appealed to the Warsaw Regional Court – Social Security Division, maintaining that the provisions of the 2009 Act on which the impugned decision was based were unconstitutional, that that Act of itself was a form of political repression and revenge based on collective responsibility and that it was in breach of the Convention. He alleged, in particular, a violation of the constitutional principles of the protection of acquired rights, the separation and balance of powers, proportionality, equality before the law and non-discrimination and also invoked Articles 1 and 14 of the Convention.
On 4 May 2011 the Regional Court, relying on the Constitutional Court’s judgment of 24 February 2010 (see paragraphs 91-106 below), dismissed the appeal. The Warsaw Court of Appeal rejected the applicant’s appeal against the first-instance judgment on 15 October 2011.
51. The application was lodged by 15 Polish nationals: Ms Renata Wyszomirska (“the first applicant), born in 1946; Ms Ewa Linowska (“the second applicant”), born in 1958, Ms Grażyna Piasny (“the third applicant”), born in 1957; Ms Anna Kończak (“the fourth applicant”), born in 1947, Ms Katarzyna Pilarska (“the fifth applicant”), born in 1935, Ms Ewa Kamińska (“the sixth applicant”), born in 1957; Ms Urszula Kaczorowska (“the seventh applicant”) born in 1944; Mr Zbigniew Wyszomirski (“the eight applicant”) born in 1943; Mr Mariusz Klauzo (“the ninth applicant”), born in 1940; Mr Sławomir Kazimierz Tokarski (“the tenth applicant”) born in 1943; Mr Juliusz Kowalski (“the eleventh applicant”) born in 1950; Mr Stanisław Laskowski (“the twelfth applicant”), born in 1946; Ms Halina Czapska (“the thirteenth applicant”) born in 1961; Ms Ewa Stępniewska (“the fourteenth applicant”) born in 1957 and Ms Teresa Pieńkowska (“the fifteenth applicant”) born in 1951. The applicants, except for the seventh and the twelfth applicants who reside in Legionowo, live in Warsaw. In the proceedings before the Court they were represented by Ms M. Gąsiorowska, a lawyer practising in Warsaw.
52. On 9 October 2009 the Director of the Board for Pensions of the Ministry of the Interior and Administration, pursuant to section 15b read in conjunction with section 32(1)(1) of the 1994 Act and on the basis of information received from the IPN, issued a decision on the re-assessment of the first applicant’s pension, whereby her benefit was reduced from PLN 2,015.53 (net) to PLN 1,780.46 (gross)/ PLN 1,484.22 (net) monthly.
53. Similar decisions were issued in respect of the remaining applicants:
– on 12 October 2009 the second applicant’s benefit was reduced to PLN 3,072.16 (gross)/PLN 2,526.67 (net); the pension’s basis of assessment was reduced from 75% to 52.94%. Pursuant to an indexation decision of 12 March 2010, the applicant’s pension was fixed at PLN 2,689.41 (net). The applicant has failed to specify the amount before the decrease but an indexation decision of 4 May 2009, which she produced, stated that her pension was fixed at PLN 3,560.62 (net).
– on 26 February 2010 the third applicant’s benefit was reduced to PLN 3,103.40 (net); she has failed to specify the amount before the decrease. On 16 June 2010 her old-age pension was lowered to PLN 2,455.04 (net) due to the fact that she was in paid employment, which justified a statutory reduction of her social security benefits;
– on 28 October 2009 the fourth applicant’s benefit was reduced from PLN 1,669.85 (net) to PLN 1,100.97 (gross)/PLN 934.88 (net);
– on 23 October 2009 the fifth applicant’s benefit was reduced to PLN 944.38 (gross)/PLN 809.39 (net). The applicant has failed to specify the amount before the decrease;
– on 12 October 2009 the sixth applicant’s benefit was reduced from 4,341.31 (gross) to PLN 3,261.77 (gross); the pension’s basis of assessment was reduced from 75% to 56.35% ;
– on 24 November 2009 the seventh applicant’s benefit was reduced from PLN 2,368.61(gross) to PLN 1,344.31 (gross);
– on 28 October 2009 the eighth applicant’s benefit was reduced to PLN 1,805.61 (gross); according to the applicant, his pension’s basis of assessment was reduced from 75% to 43.53%. He has not specified clearly the amount before the decrease but an indexation decision of 27 February 2009, which he submitted, stated that the net amount of his pension was fixed at PLN 2,557.98 (net) in 2009. In his case, the social security authority issued three decisions: the first of 28 October 2009 (described above), the second of 17 December 2009 specifying the gross (PLN 1,805.61) and net (PLN 1,504.11) amounts of his pension and the third (indexation decision) of 26 February 2010 fixing his pension at PLN 1,699.94 (net);
– on 15 October 2009 the ninth applicant’s benefit was reduced from PLN 2,698.19 (net) to PLN 1,596.77 (gross)/PLN 1,336.06 (net) ;
– on 8 October 2009 the tenth applicant’s benefit was reduced from PLN 3,504.73(gross) to PLN 2,245.65 (gross);
– on 4 November 2009 the eleventh applicant’s benefit was reduced to PLN 1,703.78 (gross). The applicant has failed to state clearly the amount before the decrease but an indexation decision of 27 February 2009, which he submitted, indicated that for 2009 his pension was increased to PLN 1,952.69 (gross)/PLN 1,622.95 (net). Subsequently, by an indexation decision of 26 February 2010, the applicant’s gross pension of PLN 1,782.50 was reduced by PLN 1,336.87 due to the fact that he was in paid employment, which justified a statutory reduction of his old-age benefits. In consequence, the applicant’s pension was fixed at PLN 1,125.55 (net) for 2010.
– on 23 September 2009 the twelfth applicant’s benefit was reduced from PLN 2,321.01 (net) to PLN 1,765.00 (gross)/PLN 1,471.15 (net);
– on 9 October 2009 the thirteenth applicant’s benefit was reduced to PLN 1,742.45 (gross)/PLN 1,453.63; the pension’s basis of assessment was reduced from 45.75% to 35.46%. The applicant has failed to state clearly the amount before the decrease but an indexation decision of 27 February 2009, which she submitted, indicated that her pension was fixed at PLN 2,258.40 (gross)/PLN 1,870.14 (net) for 2009;
– on 13 October 2009 the fourteenth applicant’s benefit was reduced to PLN 1,450.51 (gross)/PLN 1,217.96 (net); the pension’s basis of assessment was reduced from 55.19% to 42.52%. The applicant has failed to state clearly the amount before the decrease;
– on 19 October 2009 the fifteenth applicant’s benefit was reduced from PLN 3,418.28 (gross)/PLN 2,806.63 (net) to PLN 2,954.31 (gross)/ PLN 2,432.42 (net).
54. The applicants, on various dates, appealed to the Warsaw Regional Court – Social Security Division, submitting in essence that the social security authority had misinterpreted the provisions of the 2009 Act and that the impugned decisions were unlawful and contrary to the Constitution and international treaties ratified by Poland. In particular, they relied on Articles 2, 8, 10, 30 and 32 of the Constitution, asserting that the legislature had overstepped its competence because it had imposed collective punishment on them, that it had failed to respect the principle of protection of acquired rights and that they were discriminated against on account of their service with the State security authorities. They also invoked Articles 6, 7, 13 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.
The applicants have not informed the Court about the outcome of the appeal proceedings.
55. In the remaining 1,618 cases the applicants, on various dates between September and December 2009, received similar decisions reducing their pensions with effect from 1 January 2010 issued by the Director of the Board for Pensions of the Ministry of the Interior and Administration. As in the cases described above, those decisions were based on section 15b read in conjunction with section 32(1)(1) of the 1994 Act and information on their employment in the State security authorities received from the IPN.
56. Most applicants contested – unsuccessfully – the decisions before the Warsaw Regional Court. The court, rejecting their appeals, relied on the same grounds as those cited above. Subsequently, the vast majority of the applicants lodged appeals with the Warsaw Court of Appeal. The appeals, except for a few cases where certain parts of the first-instance judgments relating to technical points or mistakes in the calculations were amended, were dismissed (see also paragraphs 12, 30, 34, 42, 46 and 50 above). Certain applicants have failed to inform the Court of the outcome of the appeal proceedings and, as it emerges from the material in the Court’s possession, some cases are still pending before the domestic courts.
57. The 1990 Act entered into force on 10 May 1990. It was repealed on 29 June 2002 and replaced by the law of 24 May 2002 on the Internal Security Agency and the Intelligence Agency (ustawa o Agencji Bezpieczeństwa Wewnętrznego oraz Agencji Wywiadu).
Section 129(1) of the 1990 Act read:
“The Security Service shall be dissolved once the Office for State Protection has been set up.”
Section 131 read:
“1. Once the Office for State Protection has been set up, functionaries of the Security Service shall be dismissed from the service by virtue of law.
2. The [preceding] provision shall also apply to functionaries of the Civil Militia (Milicja Obywatelska) who were functionaries of the Security Service on 31 July 1989.”
58. Pursuant to section 132 § 2, the Cabinet was to determine, within ten days following the 1990 Act’s entry into force, the procedure and conditions for admission to service and re-employment of former functionaries of the Security Service. On 21 May 1990 the Cabinet issued Resolution 69 on the procedure and conditions for admitting functionaries of the Security Service to service in the Office for State Protection and other organisational units under the Minister of the Interior, and on their employment in the Ministry of the Interior (uchwała w sprawie trybu i warunków przyjmowania byłych funkcjonariuszy Służby Bezpieczeństwa do służby w Urzędzie Ochrony Państwa i w innych jednostkach organizacyjnych podległych Ministrowi Spraw Wewnętrznych oraz zatrudniania ich w Ministerstwie Spraw Wewnętrznych – “the 1990 Resolution”).
59. Under section 133 of the 1990 Act, functionaries of the former Security Service and Civic Militia who were admitted to service or re-employed in organisational units under the Minister of the Interior preserved continuity of their service or employment.
60. The 1990 Resolution (which was repealed on 30 March 2001) set up the Vetting Commission for Central Personnel (Komisja Kwalifikacyjna do Spraw Kadr Centralnych) and regional vetting commissions (wojewódzkie komisje kwalifikacyjne). Pursuant to paragraphs 5 and 6, the regional vetting commissions instituted a procedure on an application from a former functionary and gave opinions on candidates. The Vetting Commission for Central Personnel was responsible for the supervision of the process, handling appeals against the regional commissions’ opinions and reporting on the conduct of vetting proceedings to the Cabinet.
61. Pursuant to paragraph 7.1, a regional vetting commission evaluated the usefulness of a candidate for service on the basis of his application, personal files, records of service and other documents supplied. It could also, of its own motion or at the candidate’s request, conduct an interview.
62. Paragraph 8.1 of the 1990 Resolution read as follows:
“A regional vetting commission shall give a positive opinion on a candidate if it is satisfied that he meets the requirements for a functionary of a given service or for an employee of the Ministry of the Interior specified by law and if it is convinced that he has moral standing (kwalifikacje moralne) to perform service, in particular:
1) in the course of his service he has not infringed the law;
2) he has performed his duties in a manner not infringing the rights and dignity of other persons;
3) he has not used his function for unofficial purposes.”
63. Section 13 of the 1994 Act in the version applicable until 15 March 2009, before the entry into force of the 2009 Act (see paragraph 6 above), read as follows:
“1. The following types of service shall be treated as equivalent to service in the police, the Office for State Protection, the Border Guard, the State Fire Service or the Prison Service:
1) service performed as a functionary of the national police, the State security service, public order and national security authorities, other than service referred to in subsection 2;
2) military service relevant for the determination of the right to a military pension;
3) service performed as a functionary of the Rail Security Guard (Służba Ochrony Kolei) if [the person concerned] was transferred directly to service in the Civic Militia or the Prison Service before 1 April 1955;
4) employment or service in professional units for fire protection and education in firefighter schools, as a member of the Fire Service Technical Corps, or as a functionary of the Fire Service before 31 January 1992.
2. Subsection 1 shall not apply to service performed between 1944 and 1956 as a functionary of the State security service, public order and national security authorities if, in the course of performing his duties, a functionary committed an offence against justice or [offence] infringing the personal rights of a citizen and, in consequence, was dismissed from service in disciplinary proceedings or if criminal proceedings against him were discontinued in view of the minimal degree of social danger of his act, or if he was convicted for an intentional offence by a final judgment of a court.”
64. Section 15(1) of the 1994 Act, in the version applicable until 16 March 2009, read, in so far as relevant:
“The retirement pension of a functionary who remained in service before 2 January 1999 shall amount to 40% of its basis of assessment for the first fifteen years of service and shall be increased by:
1) 2.6% of the basis of assessment – for each subsequent year of service;
2) 2.6% of the basis of assessment – for each year of contributory periods preceding service but not for more than three years from those contributory periods;
3) 1.3% of the basis of assessment – for each year of contributory periods over and above the three year contributory period referred to in subsection 2;
4) 0.7% of the basis of assessment – for each non-contributory year preceding service.”
65. Under the 1994 Act and previous uniformed services pension laws a professional soldier and a functionary of a uniformed service were entitled to a retirement pension after 15 years of service. Accordingly, a condition for the acquisition of pension rights was the requisite period of service, not the reaching of a certain age. The right to a retirement pension under the uniformed services pension scheme as applicable in the past and currently was not linked with the requirement to pay contributions by the person concerned since those pensions were financed from State funds.
66. The preamble to the 2006 Act reads as follows:
“We hereby recognise that employment or service in the security authorities of the Communist state, or assistance provided to those authorities by an informer, consisting in combating democratic opposition, trade unions, associations, churches and religious organisations, violations of the right to freedom of expression and assembly, the right to life, liberty, property and security of citizens, was inextricably linked with violations of human and civil rights committed in the name of the Communist totalitarian regime.
Having regard to the foregoing and the need to ensure that functions, posts and professions requiring public confidence are held by persons whose conduct shows, and has showed in the past, their honesty, nobility, a sense of responsibility for their words and acts, civil courage and integrity; also having regard to the constitutional guarantees securing to citizens the right to information on persons who have held such positions, have enacted as follows ...”
67. The relevant parts of section 2 of the 2006 Act read as follows:
“1. State security .... authorities, within the meaning of this Act, shall be:
1) the Department of Public Security of the Polish Committee of National Liberation;
2) the Ministry of Public Security;
3) the Committee for Public Security;
4) organisational units subordinate to the authorities mentioned in points 1-3, in particular the units of the Civic Militia in the period up to 14 December 1954;
5) central bodies of the Security Service of the Ministry of the Interior and their subordinate local units in the regional, district, and equivalent Civic Militia headquarters, as well as in the regional, district, and equivalent offices for internal affairs;
6) the Academy of Internal Affairs;
7) the Reconnaissance Unit of the Border Defence Force;
8) the Main Board of the Internal Service of the military units of the Ministry of the Interior and their subordinate sections;
9) the Military Information Corps;
10) the Military Internal Service;
11) Directorate II of the General Staff of the Polish Army;
12) other services of the Armed Forces providing operational intelligence or conducting investigative activities, including those within various armed services and branches and within military districts.
...
3. Within the meaning of this Act the State security service units shall be those units of the Ministry of the Interior which were dissolved by virtue of law upon the reorganisation of the Office for State Security, as well as their predecessors.”
68. The 2009 Act opens with a preamble, the relevant parts of which read as follows:
“Recognising that the system of communist power was mainly based on a widespread network of State security authorities, which essentially performed the function of a political police, applying unlawful methods and infringing fundamental human rights,
noting that crimes were committed against organisations and persons defending independence and democracy and, at the same time, [their] perpetrators were exempted from responsibility and escaped justice,
seeing that functionaries of the State security service performed their duties without risking their health or life, taking advantage of various economic and legal privileges in exchange for the preservation of the inhuman regime,
...
rewarding the conduct of those functionaries and citizens who, taking a huge risk, took the side of freedom and the injured citizens,
being guided by the principle of social justice which does not permit toleration and reward of lawlessness,
have enacted as follows ...”
69. Section 2 of the 2009 Act introduced a number of amendments to section 13 of the 1994 Act (see paragraph 63 above).
Point 1) in subsection (1) was rephrased as follows:
“Periods of service as a functionary of the Office for State Protection”.
New points 1a) and 1b) were also added to subsection (1):
“1a. Periods of service as a functionary of the Civic Militia, except for service referred to in subsection 2.
1b. Periods of service as a functionary of the State security service referred to in section 2 of the [2006 Act] in accordance with the principles mentioned in section 15b, except for service described in subsection 2.”
70. Section 2 added a new section 13a to the 1994 Act. This provision, in so far as relevant, reads as follows:
“1. On a request from the relevant pension authority, [the IPN] shall prepare on the basis of personal files in its possession information on the course of service of named functionaries of the State security service referred to in section 2 of [the 2006 Act] and shall transmit it to that authority within four months of receipt of the request.
...
4. Information on the course of service referred to in subsection 1 shall contain;
1) the functionary’s personal data ...
2) an indication of the periods of service in the State security service referred to in section 2 of [the 2006 Act],
3) information whether documents in [the IPN] archives show that during that period the functionary, without his superiors’ knowledge, cooperated and actively supported persons or organisations acting for the Polish State’s independence.”
71. New section 15b was also added. It reads as follows:
“1. For a person who served in the State security authorities referred to in section 2 of [the 2006 Act] and who was in service before 2 January 1999, his pension shall amount to:
1) 0.7% of its basis of assessment – for each year of service in the State security authorities between 1944 and1990;
2) 2.6% of its basis of assessment – for each year of service or periods equivalent to service referred to in section 13 (1) (1-1a) and (2-4).
2. Sections 14 and 15 shall apply accordingly.
3. At a [functionary’s] request, the full period of service in the State security service can be added to the periods referred to in section 13(1) if he can show that before 1990, without his superiors’ knowledge, he cooperated with and actively supported persons or organisations acting for the Polish State’s independence.
4. In the situation mentioned in subsection 3, evidence can comprise information described in section 13 a (1) and, equally, other kinds of proof, in particular a criminal conviction, even if not final, in connection with an activity, [undertaken] without his superiors’ knowledge and consisting of cooperating with and actively supporting persons or organisations acting for the Polish State’s independence when serving in the State security service between 1944 and 1990.”
72. The relevant part of section 3 of the 2009 Act reads as follows:
“2. For persons in respect of whom information referred to in section 13a ... shows that between 1944 and 1990 they worked in the State security service referred to in section 2 of [the 2006 Act] and who on the date of entry into force of this Act receive benefits accorded under [the 1994 Act], the relevant pension authority ... shall of its own motion institute proceedings for the determination of the right to benefits and their amounts. [An] appeal to a court against a decision of the pension authority shall not stop the enforcement of that decision.
3. Payment of benefits determined in accordance with subsection ... (2) shall be made with effect from 1 January 2010.”
73. The rules for the determination of retirement pensions under the general social security scheme are laid down in the law of 17 December 1998 on pension benefits from the Social Insurance Fund (ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych).
The general system operates on the basis of two schemes, known as “the old scheme” and “the new scheme”.
74. Under the old scheme, which applies essentially only to persons born before 1 January 1949, the right to a retirement pension is generally acquired by women aged 60 with at least a twenty-year contributory and/or non-contributory period and men aged 65 years with at least a twenty-five contributory and/or non-contributory period. A retirement pension amounts to 24% of the so-called “base amount” (kwota bazowa) (i.e. 100% of the average salary in Poland in the previous calendar year, reduced by compulsory social insurance contributions deducted from the salary) + 1.3% of the basis of assessment for each contributory year + 0.7% of the basis of assessment for each non-contributory year. The basis of assessment is, to simplify the rules, calculated with reference to the average salary (reduced by social insurance contributions) received by the person concerned in ten years selected from the last twenty years of employment or twenty years chosen by the person concerned.
75. The new scheme is composed of the so called “three pillars” (trzy filary).
The first pillar is managed by the Social Security Board, which is a public institution and the second and the third pillars are managed by private institutions. The third pillar manages supplementary, private pension plans based on voluntary contributions and is not relevant to the present cases.
In the first and second pillars social insurance contributions are compulsory and the scheme applies to persons born after 31 December 1948. The right to a retirement pension is acquired by persons who have reached the statutory retirement age (from 60 to 67 years for women and from 65 years and five months to 67 years for men). The amount of a retirement pension is the equivalent of the total amount of pension contributions after indexation collected since 31 December 1998 and what is known as “initial capital” (contributions collected before 1 January 1999) after indexation, divided by the average life expectancy expressed in months for a person whose age is the same as the retirement age of the person concerned.
76. According to an official communiqué on the minimum statutory pension, issued by the President of the Social Security Board on 16 November 2011 (published in the Official Gazette (Monitor Polski) of 2011 no. 15, item 162), in 2012 the minimum statutory pension was fixed at 728.18 Polish zlotys (PLN).
77. Article 2 of the Constitution states:
“The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.”
78. Article 10 of the Constitution states:
“1. The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.
2. Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and judicial power shall be vested in courts and tribunals.”
79. Article 18 of the Constitution states:
“Marriage, being a union of a man and a woman, as well as the family, motherhood and parenthood, shall be placed under the protection and care of the Republic of Poland.”
80. Article 30 of the Constitution states:
“The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.”
81. Article 31 § 3 of the Constitution states:
“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”
82. Article 32 of the Constitution states:
“1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.
2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.
83. Article 42 of the Constitution states:
“1. Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof, and which is subject to a penalty, shall be held criminally responsible. This principle shall not prevent punishment of any act which, at the moment of its commission, constituted an offence within the meaning of international law.
2. Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings. He may, in particular, choose counsel or avail himself - in accordance with principles specified by statute - of counsel appointed by the court.
3. Everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court.
84. Article 67 § 1 of the Constitution states:
“A citizen shall have the right to social security whenever incapacitated for work by reason of sickness or disability as well as having attained retirement age. The scope and forms of social security shall be specified by statute.”
85. On 23 February 2009 a group of members of Parliament belonging mostly to the Democratic Left Alliance (Sojusz Lewicy Demokratycznej) asked the Constitutional Court (Trybunał Konstytucyjny) to declare that the 2009 Act was in its entirety incompatible with Articles 2, 10, 31 § 3 and 32 of the Constitution. Subsequently, in their pleading of 30 August 2009, they also relied on Articles 18, 30, 42, 45 and 67 § 1 of the Constitution.
86. The main thrust of the very extensive arguments submitted in support of the application, which were made both in writing and at an oral hearing can be summarised as follows.
1) The 2009 Act, drastically reducing the pensions of former functionaries, had deprived some of them of the possibility of living with dignity and consequently was contrary to the principle of respect for human dignity laid down in Article 30 of the Constitution. At the same time, it infringed the very essence of the right to social security set forth in Article 67 § 1 of the Constitution.
2) All the functionaries of the State security service who had been reemployed after 1990 had undergone a vetting procedure under the 1990 Resolution and had been considered fit for service in the democratic Republic of Poland. They had obtained their pension rights lawfully under the 1994 Act, a law enacted by independent, democratic Poland. The 2009 Act extinguished their rights acquired under a democratic system in an arbitrary fashion and unjustifiably, in breach of the principle of the protection of acquired rights laid down in Article 2 of the Constitution.
3) Vetting and re-employing former functionaries of the State security service constituted a special declaration, made on behalf of the Republic of Poland by the State authorities, that they would be treated on an equal basis with all functionaries of services created after 1990. In turn, the functionaries, under oath, took upon themselves an obligation to serve the nation faithfully and protect the legal order established by the Constitution, and the security of the State and its citizens. They fulfilled their duties; otherwise, they would not have been granted their pensions.
The 2009 Act, enacted some twenty years later, amounted to a breach of this special pact and, consequently, violated the principle of the citizens’ confidence in the State and the laws made by it laid down in Article 2 of the Constitution.
4) The 2009 Act was based on the rule of collective responsibility and presumption of guilt on the part of former functionaries of the State security service. It applied an automatic restriction of pension rights of all former State security service functionaries, notwithstanding their actual individual conduct and the nature of the duties they had performed in the past. As a result, the 2009 Act, drastically lowering the coefficient used for the determination of their pensions, constituted a form of unjustified repression against positively vetted and re-employed functionaries.
This was tantamount to considering service before 1990 a noncontributory period. In particular, the legislature did not put functionaries on an equal footing with other persons receiving pensions under the general social security scheme, where a coefficient of 1.3% applies, which could give the deceptive appearance of a “withdrawal of privileges”, but placed them in a decisively more disadvantageous position. This constituted a breach of the principle of social justice laid down in Article 2 of the Constitution.
5) The legislature also violated the principle of separation and balance of powers laid down in Article 10 § 1 of the Constitution. It imposed collective punishment on all persons who had been functionaries of the State security service before 1990. The mere fact of service in those authorities was decisive. No legal procedure was available to review the legality, justification, adequacy and proportionality of the sanction imposed. For all practical purposes, the legislature took over the role of the courts of law. In consequence, functionaries were punished collectively, regardless of whether they had indeed been responsible for any acts which were unlawful, infringed human dignity or were morally reprehensible.
6) The 2009 Act was in breach of the principle of proportionality laid down in Article 31 § 3 of the Constitution because it constituted an extremely serious restriction on the pension rights of positively vetted and re-employed functionaries and imposed an excessive burden on them. Moreover, the 2009 Act entirely disregarded the Council of Europe Parliamentary Assembly Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems (“the 1996 PACE Resolution”) and its accompanying guidelines, recommending that that process should be terminated within ten years of the fall of the communist dictatorship (see also paragraph 115 below).
7) The 2009 Act, contrary to the principles of equality before the law and non-discrimination laid down in Article 32 of the Constitution, introduced discrimination between functionaries who had been vetted positively and subsequently re-employed and functionaries who had not served in the State security authorities before 1990. There was no basis for this difference in treatment as both groups had the same characteristics.
87. The deputies also stressed that the legislature had ignored the fact that functionaries of the State security service had performed various duties and that, in particular, many of them had been administrative personnel, had been teachers, secretaries, or drivers or they had dealt with common or economic crime and had not been involved in surveillance of or combat against the opposition. In their view, these persons should not be affected by the 2009 Act. It was profoundly unjust that a functionary who had worked all his professional life in the State security service in a lowly technical or administrative position, not infringing the rights of others, not combating the opposition and not acting for the preservation of the communist regime should now receive a pension of only PLN 600 zlotys.
88. The other parties to the proceedings, namely the Sejm, represented by its Speaker (Marszałek) and the Prosecutor General, also submitted extensive arguments.
89. The Speaker of the Sejm asked the Constitutional Court to dismiss the application, stressing, in particular, that the impugned reduction could not be regarded as disproportionate or excessive having regard to the lowest benefits available under the general social security scheme or those received by persons who had been subjected to political repression under the totalitarian system.
90. The Prosecutor General asked the Constitutional Court to dismiss the application in part contesting the reductions in pensions, and to discontinue the proceedings in respect of the remainder.
91. The Constitutional Court, sitting in a panel of fourteen judges, heard the application on 13 and 14 January and 24 February 2010. It gave judgment on the last of these dates, holding that the contested amendments to the 1994 Act introduced by the 2009 Act were compatible with the Constitution. Five judges voted against the ruling and submitted dissenting opinions (see paragraphs 107-111 below). One of the judges submitted a concurring opinion.
92. The judgment contains very extensive reasoning, which can be summarised as follows.
93. As regards the scope of the constitutional review in the case, the Constitutional Court held that the application would eventually be examined under Articles 2, 10, 30, 32, 42 and 67 § 1 read in conjunction with Article 31 § 3 of the Constitution (see also paragraphs 77-84 above) and, finding that the deputies had not advanced meritorious arguments concerning the other alleged breaches, discontinued the proceedings in that respect.
94. In an introductory part of the judgment the Constitutional Court referred at length to various general issues, such as the Polish Parliament’s resolutions condemning the former communist regime and the decommunisation laws adopted by Poland. It also had regard to resolutions of the Parliamentary Assembly of the Council of Europe, in particular, the 1996 PACE Resolution and the Resolution 1481 (2006) on the need for international condemnation of crimes of totalitarian communist regimes (“the PACE 2006 Resolution”; see also paragraphs 115-116 below), as well as to laws and measures affecting pension rights of functionaries of the former communist State security service in other countries (in particular, in Germany, the Czech Republic, Latvia and Romania). It referred to the Court’s case-law on lustration and de-communisation measures and its own jurisprudence on settling accounts with the communist past.
95. The Constitutional Court next referred to the essential features and activities of the communist State security service. This part of the reasoning reads, in so far as relevant, as follows:
“6.2. ... The State security authorities of the Polish People’s Republic and their functionaries safeguarded the communist regime in Poland in the years 1944-89, they preserved the situation in which in Poland there was no liberty and democracy, no market economy and no affiliation with the Western world. [A] direct consequence thereof was a degradation of the country’s civilisation, which was demonstrated by, among other things, a deep disintegration of its economy and financial situation.
The [communist] system was founded on a secret political police apparatus which was extensive in terms of its structure and number [of employees]. The main objective of this apparatus was to preserve and support the communist regime. To this end, functionaries of the State security service of the Polish People’s Republic in the initial period used terror and, routinely, humiliation, surveillance of innocent people, and fabrication of evidence; they violated fundamental human rights and freedoms. The methods they used and the scale and intensity [of their activities] changed over time, but their essence was the same – to support a political regime which was hostile to human rights. In reward, the ruling communist party gave those functionaries practical impunity for abuses of power, promotions that were faster than in other uniformed services, a high remuneration for service, other numerous additional economic and social privileges, and high retirement pension benefits.
6.3. This court does not judge the individual motivations of the tens of thousands of people who chose voluntarily to serve in the State security authorities of the Polish People’s Republic, mostly young men. It is likely that purely professional motivation (service in the secret police) was similar to that which exists today. A considerable difference lies in the object of the choice. In no case does the choice of service in the secret political police of the communist State merit approval, notwithstanding the organisational unit and the grade of the functionary ...
By the closing days of the Polish People’s Republic about 30,000 functionaries were employed by the State security authorities. Today there are in total about 10,000. This is not just one-third of the previous total. The security authorities of the Polish People’s Republic, instead of serving to protect the political, social and economic aspirations of Poles, constituted a highly specialised net of institutions which worked against these aspirations. The “product” that remained after those security authorities had been disbanded is over eighty-six kilometres of files, of which only 850 m are important for national security today and are in the restricted archives of the IPN ...”
96. In respect of the deputies’ argument that the functionaries adversely affected by the 2009 Act had been either positively vetted or not subjected to the vetting procedure, the Constitutional Court held, among other things, that:
“6.4 ...[A]s a result of democratic transformation in Poland the Security Service was ... dissolved. The ... sovereign Polish State needed new services, which would ensure its security and would at the same time act in accordance with the standards of a democratic state ruled by law. There were two possible options: 1) constructing the new services from scratch, and recruiting exclusively persons who had not served in the Security Service, with the prospect of a long period of preparation for their tasks or 2) setting up a new State protection police quickly, taking unavoidably large numbers of former functionaries of the dissolved Security Service, the legislature chose the second option. It meant that former functionaries of the Security Service could be admitted to service in the Office for State Protection.
6.4.1. The object of the vetting procedure was not to issue certificates of good moral standing to functionaries of particular departments of the Security Service ...”
97. A considerable part of the reasoning was devoted to a comparison between pensions under the general social security scheme and the uniformed services system.
In respect of the calculation of pensions under the general rules, it was noted that the system was organised in such a way that an ordinary employee on his retirement received 40% of his salary calculated for a period of ten calendar years chosen by him from the last twenty years preceding his retirement, including contributory and non-contributory periods. The longer the period of employment, the higher the pension. In practice, in order to receive a pension close to half the average salary in the last ten years, a person had to be employed for at least thirty years.
In contrast, a functionary of the uniformed services acquired the right to a pension equal to 40% of his average salary after only fifteen years of service. The average salary of persons insured under the general scheme was 50% that of the uniformed services personnel and this difference was even more marked in comparison to the special services. Accordingly, a pensioner insured in the general scheme received 40% of his average salary for the last ten years for a period of employment which was twice as long.
98. As regards the belated introduction of the new rules and nonconformity of the 2009 Act with the 1996 PACE Resolution, the Constitutional Court observed, inter alia, the following:
“ ... The lapse of time since the Polish State gained sovereignty in 1989, although not without significance, cannot be a decisive criterion for the evaluation of constitutionality of the regulations adopted by the legislature in order to settle accounts with the former functionaries of the communist regime. There is no provision in the Constitution which would impose a prohibition on enacting such regulations. The Constitution does not set time-limits for the settling of accounts with the past communist regime. It is not within the competence of the Constitutional Court to give an opinion on whether, and if so by when, the legislature of free Poland can introduce such laws ... How much time elapses between the collapse of the communist regime and the adoption of a given law depends on the existence of a configuration of power capable of enacting the law during its parliamentary term. As shown by the examples of Poland and other countries in our region of Europe, as well as certain countries in South America, many years may elapse after the establishment or reestablishment of democracy before laws are enacted regulating a certain aspect of responsibility for systemic abuses of power ...
8.4. Referring to the argument that the 2009 Act of 23 January 2009 is in ‘flagrant contradiction’ of the 1996 Pace Resolution and of the guidelines to that document ... the Constitutional Court finds that there is no suggestion in those documents that settling of accounts with the communist period should only take place during the first ten years after the overthrow of the dictatorship. Laws on settling accounts have been introduced in various [countries] and in various years over the past two decades, including in recent years ... As the Constitutional Court has noted above, pursuant to § 14 of the 1996 PACE Resolution: ‘In exceptional cases, where the ruling elite of the former regime awarded itself pension rights higher than those of the ordinary population, these should be reduced to the ordinary level’”
99. As regards the argument that an interference with the functionaries’ right to social security was excessive, the Constitutional Court noted that, in essence, the legislature reduced the coefficient of the pension’s basis of assessment from 2.6% to 0.7% only in respect of functionaries of the State security service who were in service before 2 January 1999 and who had been employed for at least fifteen years. Other elements relevant to the assessment of pensions remained unchanged, in particular the right to a pension after fifteen years of service, advantageous calculation of the pensions’ basis of assessment in comparison to the general system, rules and terms regarding indexation, invalidity and survivor pensions benefits, special allowances and increases in pensions due to, for instance, service during the war, combating terrorism, serving in hazardous conditions or in the counter-intelligence service.
In that context, the Constitutional Court also cited various information supplied by the social security authorities, concerning levels of pensions of functionaries as determined under the 2009 Act in comparison to ordinary pensioners. In January 2010 the average pension of the former amounted to 2,558.82 Polish zlotys (PLN), whereas the average pension received under the general social security scheme was PLN 1,618.70. At the material time the minimum statutory pension was PLN 675.10.
In February 2010 the average pension received by former functionaries of the State security service was lowered by PLN 346 and was still higher by 58% than the average pension under the general scheme. Only in respect of ordinary functionaries was the average pension (PLN 1,499.64) slightly lower than under the general scheme. Junior officers received PLN 2,102.12 on average (formerly PLN 2,670.930, senior officers PLN 3,479.67 (formerly PLN 4,156.21) and generals received PLN 8,598.43 (formerly PLN 9,578.41).
100. According to information produced by the Director of the Board for Pensions of the Ministry of the Interior and Administration on 5 February 2010, the board issued 38,563 decisions re-assessing pensions of former functionaries. In 7,227 cases the pensions remained unchanged due to the fact that certain periods of employment, which had not previously been included, were taken into account. In 589 cases the application of the 0.7% coefficient as established by the 2009 Act would have resulted in reducing pensions below the statutory minimum and, therefore, those pensions were increased so as to reach that amount.
In view of the foregoing, the Constitutional Court held that the legislature, being guided by the principle of social justice, pursued the legitimate aim of adjusting the pensions of former functionaries of the State security service to the average level of pensions under the general social security scheme. In consequence, in January 2010 the average pension of a functionary was still higher that the average ordinary pension. This reduction limited, but did not extinguish, the excessive, unjustly acquired generous benefits of former state security functionaries. This demonstrated that the legislature was not seeking revenge but greater social justice.
101. Considering the above circumstances, the Constitutional Court concluded that the impugned provisions were not incompatible with Article 67 § 1 read in conjunction with Article 31 § 3 of the Constitution. It held, inter alia, as follows:
“8.9. The Constitutional Court finds that the legislature did not infringe the essence of the right to social security by introducing the 2009 Act. Although it considers that the reduction in retirement pensions of ... the functionaries of the State security service of the Polish People’s Republic was significant, it nevertheless remained within the margin of appreciation determined by the Constitution. An infringement of [their] right to social security would, in particular, have occurred if the legislature had taken away all their retirement pension rights or reduced their pensions to a level below the social minimum standards. By reducing [their] retirement benefits the legislature not only guaranteed that their benefits would not be lower than the minimum statutory retirement pension under the general social security system ... but also ensured that the amount of [their] average retirement pension under the new provisions remains still significantly higher than the average retirement pension paid under the general social security system.”
102. Rejecting the arguments as to the alleged incompatibility of section 13(1) and (1b) and section 15b of the 1994 Act as introduced by the 2009 Act with Article 30 of the Constitution (the principle of respect for human dignity), the Constitutional Court held:
“9.2. The impugned provisions are neither aimed at depriving the functionaries of security authorities of the minimum means of subsistence, nor at humiliating them. [The] aim is to reduce their retirement pension benefits, which ... stem from the privileged system of social security. As ... already established above .... after the entry into force of the 2009 Act, the average reduced retirement pension of a functionary of the State security authorities ... is still 58% higher than the average retirement pension in the general retirement pension system, and almost four times higher than the minimum statutory retirement pension. In this situation, the legislature under the impugned provisions still provides retired functionaries of the State security authorities .... with adequate, justified and fair social security benefits for the period of their service before 1990 ... In conclusion, the contested provisions conform to Article 30 of the Constitution.”
103. The Constitutional Court further rejected the arguments in respect of the alleged incompatibility of sections 13(1) and (1b) and 15b(1) of the 1994 Act as introduced by the 2009 Act with Article 2 of the Constitution (the principle of citizens’ confidence in the state and the law made by it, the principle of protection of acquired rights and the principle of social justice). The relevant part of the reasoning reads as follows:
“10.2. ... The legislature was entitled – despite the lapse of over nineteen years since the transformation of the system – to introduce provisions reducing retirement pensions for periods of service in the State security authorities ... It does not follow from the constitutional principle of protection of citizens’ confidence in the State and the laws made by it that everyone, regardless of his or her personal circumstances, may assume that the rules governing his social rights will never change to his disadvantage in the future ...
The protection of acquired rights does not mean that those rights are inviolable, and does not exclude the enactment of less advantageous regulations. The Constitutional Court has stressed on many occasions that departure from the principle of protection of acquired rights is permissible, provided it has a basis in other constitutional principles, provisions or values .... According to the well-established jurisprudence of the Constitutional Court, the principle of protection of acquired rights does not apply to rights acquired unjustly or dishonourably, nor to rights which lacked a basis in the constitutional order binding at the time of adjudication ...
By enacting the contested provisions the legislature expressed a negative opinion on the activities of ... the security authorities of the communist State, which was confirmed in the course of legislative work and in the preamble to the 2009 Act. In the preamble, the legislature declared it had been guided by the ‘principle of social justice, which does not permit the toleration and reward of lawlessness’. ... As already stated above, the legislature of free Poland has never expressed a single positive opinion on the secret political police of the years 1944-89, and in the years 1989-2009 this opinion has been reflected in laws and adopted resolutions many times. As long as constitutional principles and values are respected, the legislature has the right to draw conclusions from the historical experience of the Polish People’s Republic ...
The applicant seems to suggest that the impugned provisions would conform to the constitutional principle of social justice if the coefficient of the basis of assessment for the retirement pension was 1.3% ... which, in the applicant’s opinion, might give a deceptive appearance of a “withdrawal of privileges”. The 0.7%, however ...placed those affected by it in a position where their pension was significantly lower than in the general retirement pension system, which, according to the applicant, amounts to repression ...
This argument is ill-founded ...
As this court has already found ... the ... 0.7% for every year of service must be assessed taking into account the fact that functionaries of the State security authorities had been receiving remunerations significantly higher than the average salary in Poland .... The amount of the retirement benefit is not determined by the coefficient for the basis of assessment alone (2.6%, 1.3% or 0.7%), but is a result of the “base amount” and other factors, relevant to the establishment of the final amount of the whole benefit ...
This court has already established that, after the 2009 Act’s entry into force, the average reduced retirement pension of a functionary of the State security authorities ... is still 58% higher than the average retirement pension in the general old-age pension system, and almost four times the statutory minimum retirement pension. ...
10.7. In sum, the privileges in respect of retirement pension rights [of the functionaries] have been acquired dishonourably. The aims and methods of ... the State security service of the Polish People’s Republic cannot be considered legitimate. This court finds that service in State institutions and authorities which systemically violated fundamental human rights and the rule of law may not justify claims that privileges acquired before the fall of the regime should be preserved in a democratic state ruled by law.
One of the ways of rewarding [the functionaries] ... for service was, among many other things, providing them with retirement pension privileges. These privileges were preserved by their beneficiaries in free Poland, which was confirmed in the 1994 Act. In 2009, assessing negatively the State security authorities of the Polish People’s Republic, the legislature was able to resort to the abolition or limitation of unjustly acquired retirement pension benefits. ... This court considers that the manner in which the legislature ... reduced unjustly acquired retirement privileges in 2009 was balanced, restrained and proportional.”
104. The argument that the impugned provisions were incompatible with Article 32 of the Constitution (the principle of equality before the law and non-discrimination) because all the functionaries were treated in the same way, despite the fact that most of them had been positively vetted, was likewise rejected. In that regard, the Constitutional Court once again stressed that the positive outcome of the vetting procedure did not mean an approval of service in the former communist secret political police and it did not eradicate the fact that the functionaries concerned had served in that institution voluntarily. All the functionaries were treated in exactly the same way and they were partly deprived of their pension benefits on the same ground, which was the fact that they had served in an institution which had engaged in reprehensible activities over the relevant period. Their service after the cut-off date in 1990 for democratic Poland was treated without discrimination since they acquired the same pension rights as the others, notwithstanding their past.
105. The Constitutional Court found no breach of Article 10 of the Constitution (the principle of division and balance of power) in respect of the allegation that the legislature enacted the 2009 Act in order to impose a collective punishment on the former State security functionaries. It observed that Parliament had not overstepped its competences set out in the Constitution and that the contested provisions were not designed to punish the functionaries collectively but to reduce their pensions to the level of the average pension under the general social security scheme.
106. Lastly, as regards the argument that the contested provisions of the 2009 Act were based on collective responsibility and presumption of guilt since all the functionaries of the State security service were equally considered criminals who did not deserve any rights, the Constitutional Court found that Article 42 of the Constitution (the principles of the right to defence, presumption of innocence, nulla poena sine lege) did not apply in the case. It stressed that this provision concerned only criminal responsibility and criminal proceedings and could not be interpreted extensively. There were no criminal sanctions included in the impugned provisions. Nor did they prejudge criminal guilt of functionaries, and they did not constitute a form of repression.
107. In Judge Jamroz’s view the 2009 Act was in its entirety incompatible with Article 2 and Article 10 of the Constitution. In his dissenting opinion he stated, among other things, the following:
“Changes in the retirement pension system are obviously permissible, and also in certain circumstances justly acquired rights cannot be absolute. However, this needs to be done with respect for constitutional principles, and in particular those in Article 2 of the Constitution ...
The 2009 Act is in breach of Article 10 of the Constitution, since the legislature has imposed collective punishment on all those who were functionaries of the State security authorities before 1990, without considering the conduct of individual functionaries. The decisive factor is the mere fact of serving in the State security authorities of the Polish People’s Republic. In this way the legislature entered the realm of authority which is constitutionally restricted to judicial bodies, without taking any action to check or verify the legitimacy, adequacy, legality, fairness and proportionality of the sanction imposed. As a consequence the legislature, relying on the principle of collective responsibility, has imposed severe punishment, regardless of whether the functionaries are responsible for any unlawful acts which violated human dignity, or whether their actions were morally reprehensible ...
The judgment ... following the intentions of the legislature which have been expressed in the preamble, passes on political and moral judgment regarding the functioning of the State security authorities in the Polish People’s Republic and draws from it legal consequences with regard to constitutional matters. However, I object to the methodology of adjudicating in the name of “pure justice” which has been assumed by the Constitutional Court, which has been inspired by political and moral opinions but has omitted the constitutional principles reflecting contemporary long-standing standards of a democratic state ruled by law established in its jurisprudence ....”
108. Judge Łętowska considered that the Preamble to the 2009 Act was incompatible with Article 2 of the Constitution, that sections 1 and 2 read in conjunction with Article 3 of the 2009 Act were incompatible with Articles 2 and 67 § 1 read in conjunction with Article 31 § 3 of the Constitution and disagreed with the majority with regard to certain general ideas expressed in the reasoning. The relevant parts of her opinion read as follows:
“I do not question the constitutional admissibility (and legitimacy) of reducing retirement pensions for the staff who formed a kind of “Praetorian Guard” of the totalitarian regime, subsequently discredited in the democratic system. I question the way in which it has been carried out. ...
The preamble to the Act first of all stigmatises the persons to whom the reduction of retirement pensions applies and, secondly, specifies the aims of the Act. With regard to the former, it states that, as functionaries of State security authorities, they received pensioner status granted ‘in exchange for the preservation of the inhumane regime’ in which, at the same time, ‘the perpetrators were exempted from responsibility and escaped justice”. These charges contain a strong emotional, moral and legal condemnation. When such a charge is made globally assertion of humiliation is thereby justified.
The mere fact of the above-mentioned stigmatisation of all persons to whom the 2009 Act applies, constitutes, in my view, a breach of the principle of proper legislation (Article 2 of the Constitution), as the scope ratione personae of the Act is broader than the group of persons at whom the Act is aimed, as indicated in the preamble, (deprivation of privileges unjustly acquired during the period of the totalitarian regime). ...
I do not share the view expressed in the judgment that the positive vetting of the staff of the Civic Militia and the Security Service, carried out in 1990, is irrelevant to an assessment of the constitutionality of the 2009 Act. ...
It cannot be assumed (as it has been in the judgment) that nobody guaranteed through the vetting the prospects of a retirement pension under the uniformed services system. The uniformed service brings with it not merely an obligation to perform work and the right to remuneration, but an entire legal status related to that service. The status also includes acquiring (as a continuous process during the period of service) retirement pension entitlements appropriate for uniformed services. That entitlement was granted to the positively vetted persons by allowing them to perform service in the democratic state ... .”
109. Judge Mazurkiewicz stated that the Preamble to the 2009 Act was incompatible with Articles 2 and 10 of the Constitution, that section 1 taken together with section 3(1) and (3) and section 2 taken together with section 3(2) and (3) of the 2009 Act were incompatible with Articles 2, 10, 32 § 2 and Article 67 § 1 read in conjunction with Article 31 § 3 of the Constitution. The relevant passages of his dissenting opinion read as follows:
“The Constitutional Court is a court of law, and not a court passing judgments on history. Respecting the principles of proper legislation is functionally linked with legal certainty and security, as well as with the protection of citizens’ confidence in the State and the laws made by it ... The principle of legal security requires that the legislature respects the existing legal relations. Introducing amendments during the legislative process which are not objectively justified and which divert the previous direction of the legislative process that was set by ... the 1994 Act infringes the principle of a democratic state ruled by law ...
The principle of legality obliges the legislature to formulate laws to be enacted in accordance with the provisions of the Constitution ... The challenged provisions of the 2009 Act are also inconsistent with the constitutional right to social security (Article 67 § 1 read in conjunction with Article 31 § 3 of the Constitution), and the variation in the level of retirement pensions under the uniformed services system: 1) due to the lack of connection between the distinction which has been introduced between pensioners from the uniformed services and the main aim of the statutes on retirement pensions, 2) due to the lack of proportionality of the applied legal solutions and 3) without any justification arising from a possible need for the protection of another, more important, constitutional value – must be regarded as inconsistent with Article 32 § 1 read in conjunction with Article 31 § 3 of the Constitution. ....”
110. Judge Wyrzykowski stated that the preamble to the 2009 Act was incompatible with Articles 2, 10 and 42 of the Constitution and that section 15b of the 1994 Act as introduced by the 2009 Act was incompatible with Article 2 read in conjunction with Articles 67 § 1 and 31 § 3, as it infringed the principle of protection of acquired rights and that it was also incompatible with Articles 10 and 42 of the Constitution.
The dissenting opinion reads, in so far as relevant, as follows:
“The first problem that arises in connection with the judgment concerns the significance of the passage of time for limitations on the legislature’s activities. The 2009 Act was enacted almost twenty years after the change of the political and social system in Poland. ...
The citizens of the Republic of Poland affected by the 2009 Act had all the reasons to assume that the rules which were binding for the last twenty years would not be changed unless there were new circumstances justifying radical amendment of the legal provisions. ...
The legal fiction introduced by the legislature, namely applying the 0.7% coefficient to the basis of assessment for every year of service in the State security authorities in the years 1944-90, which means that the legislature treats those affected as though they had not worked in that period, cannot be regarded as consistent with the Constitution. [Under the general social security scheme] the 0.7% coefficient applies to persons who have not paid pension contributions ... The functionaries employed in the State security authorities performed work (service) and the application of the fiction in 2009, changing the rules for the calculation of retirement pensions, must be justified in a particularly convincing way. The legislature did not delegalise work (service) [in the State security authorities] or [those] authorities, but only condemned them in the preamble to the 2009 Act ... The application of the 0.7% coefficient is not, by its nature, a revocation of a privilege, but a kind of individually addressed sanction. ...
The preamble to the 2009 Act contains a statement which may be regarded as crucial for understanding the essence of the changes introduced to the rules for the calculation of retirement pension benefits. As the justification for the Act, it is stated that ‘crimes were committed against organisations and persons defending independence and democracy and, at the same time, the perpetrators were exempted from responsibility and escaped justice’. ...
This is not a mere stigmatisation of particular individuals to whom the decisions specifying the new amount of retirement pensions were addressed, but is also about the use of rhetoric which at very least suggests that the adopted statutory solutions concerning retirement pensions are a form of punishment for undetected crimes against organisations and persons defending independence and democracy, and that those crimes were committed by perpetrators who escaped responsibility and justice ...
If behind the legislature’s decision ... is an assumption that the addressees committed crimes and did not bear responsibility for their acts, then this means that the legislature qualifies certain acts. The point is that such qualification should be done by a criminal court, and not by the legislature. Whether a crime has been committed must be determined in the course of court proceedings, and not in the course of the legislative work. There is no doubt that the legislature has infringed Articles 10 and 42 of the Constitution ...”
111. Judge Zdziennicki stated that the 2009 Act taken as a whole was unconstitutional and incompatible with all the provisions cited by the deputies. The relevant parts of his dissenting opinion read as follows:
“The drastic reduction of retirement pensions vis-à-vis their level estimated under the rules previously and currently applicable under the uniformed services retirement pension system constitutes economic repression directed against specific recipients and, it should be stressed, their families. This repression is accompanied .... by penal stigmatisation of pensioners, in the form of describing their service in the Polish People’s Republic as nothing but unlawful activities and continual commission of crimes violating fundamental human rights – all this in order to ‘preserve the inhuman regime’.
In the present case what happened is not a revocation of ‘unjustly acquired privileges’ since ... retirement pensions paid under the uniformed services system are not privileges, and the rules for granting them have always been the same for everyone. The ostensible action conceals the real legislative aim, namely collective repression directed against the functionaries of the State security authorities of the Polish People’s Republic ... by means of a drastic reduction (twenty years after the fall of the communist regime) of the retirement pensions they have so far received. ...
Subjecting certain individuals to ex lege repression (by drastically reducing the retirement pensions which they have so far received) means that the legislative power has decided to substitute itself for the judiciary, although there is a constitutional requirement that guilt and punishment should be determined in court. This amounts to a breach of both the principle of separation of powers (Article 10 of the Constitution) and the constitutional right to a court.
Reducing ex lege pensions already being awarded ... without individual inquiry proceedings, and passing a condemnatory moral judgment with regard to a specific group of citizens, means assigning collective responsibility, which is inadmissible in a democratic state ruled by law (compare Articles 2 and 42 of the Constitution) ...
[The measure] applied leaves no doubt that the 2009 Act has introduced inadmissible, extra-judicial and collective criminal responsibility in respect of persons regarded as former political opponents of the current parliamentary majority. ...”
112. On 3 March 2011 the Supreme Court dealt with a legal question submitted in the case of a certain E.C. by the Warsaw Court of Appeal, asking whether the provision of section 15b(2) of the 1994 Act (as amended by the 2009 Act) that stated that section 15 of the 1994 Act should apply accordingly meant that persons who had been functionaries of the State security service preserved the right to a retirement pension equal to 40% of its basis of assessment for the first fifteen years of employment.
113. The Supreme Court ruled that its response to the question would be as follows:
“ For every year of service in [the State security authorities] between 1944 and 1999 the pension should be 0.7% of its basis of assessment (section 15b (1)(1) of the 1994 Act), which means that the amount of the pension calculated exclusively in respect of the period of such service may be lower than 40% of the basis of assessment.”
114. The relevant parts of the reasoning read as follows:
“No ways or means of interpretation of reference to section 15 of the 1994 Act contained in section 15b(2) gives persons who have served in the [State security authorities] any legal possibility or arguments to assert the determination of their pensions on any other basis of assessment than 0.7% for each year of service ... In contrast, the legal provisions under consideration are unambiguously plain, and therefore clear and not requiring any deeper legal analysis. However, having regard to a considerable number of persons who are concerned by ... reductions in pensions, this court has decided to resolve the submitted legal question ...
Taking 40% of the basis of assessment for fifteen years of service as a minimum ... would lead to an inadmissible and unjustified negation of the [2009 Act’s] aim. Chronologically, as a matter of principle, service in the years 1944-90 would correspond to the ‘first’ (initial) years of service giving an entitlement to uniformed services’ pension rights. [An] interpretation that they would preserve at least 40% of the basis of assessment ... would exclude or at least considerably limit ... the rule that their pensions should be calculated with reference to the 0.7% coefficient of the basis of assessment for each year of service in the State security authorities between 1944 and 1990 ...
It should be firmly stressed that the aim of the provisions under consideration, added by [the 2009 Act], was not to deprive pensioners of the rights acquired due to service in the totalitarian State security authorities between 1944 and 1990. [T]he legislature did not take away from them the right to take advantage of the uniformed services’ pension scheme, including for their periods of service in the State security authorities of the Polish People’s Republic, but, in accordance with the constitutional principles of social justice and elementary (ordinary) decency, adjusted the levels of their benefits ... only in respect of periods of service which consisted in betraying the values of independence, freedom and democracy – to the level of benefits under the general social security scheme, without a further (pro futuro) possibility of taking advantage of the privileges unjustly or dishonourably acquired due to service in the totalitarian State security authorities between 1944 and 1990. Including this period in the ‘pensionable service’ under the unformed services’ pension scheme and giving them 0.7% of the basis of assessment calculated in relation to the last, namely in principle the highest monthly salary in their last post, does not in any way discriminate against these persons. On the contrary, this is still a comparable, and even more advantageous [solution] than under the general social security scheme, having regard to the fact that [a pension’s basis of assessment under the general scheme] is determined not with reference to the highest income in one (last) month of employment but to the average basis for social security contributions for ten subsequent calendar years selected from the last twenty years, or twenty calendar years selected from the entire contributory period ....
In that context, the impugned legislation does not constitute any breach of the common principle of equality or proportionality of benefits received under the pension scheme for uniformed services by persons who served in the security authorities of the totalitarian state, who engaged in unlawful and dishonourable acts or methods of political violence against compatriots – in comparison to benefits available under the general social security system.
It is worth noting that the provisions governing pension rights of victims of political repression by the State security service are still less advantageous [Their] periods of imprisonment on political grounds are included in the contributory periods but the relevant coefficient for a pension’s basis of assessment is 0% because of their lack of income ... whereas those who subjected them to that repression are entitled to the 0.7% coefficient ...
Moreover, the 0.7% coefficient calculated with reference to the highest remuneration normally does not differ unfavourably from the 1.3% coefficient of the basis of assessment under the general social security scheme ... having regard to the fact that uniformed services pensions are calculated with reference to a higher (2.6%) or at least equal (1.3%) coefficients of the basis of assessment for periods before or after the termination of service ...
Admission to ... public service in the State security institutions of the democratic state governed by the rule of law restored in Poland after 1990 does not constitute rehabilitation for the time of service in the security structures of the totalitarian state according to the standards of the democratic state ... which does not have the right or duty to maintain the privileges [acquired] on account of unlawful suppression of citizens’ inherent rights and freedoms by the State security service of the totalitarian state. ...
The Supreme Court unequivocally criticises and disqualifies any arguments for maintaining privileges acquired due to, or in connection with, participation in the system of enslavement and political repression by the State security service of the communist totalitarian state ... The privileges so acquired are not protected in a democratic system where there is domestic law, community law and international law, because persons who fight against fundamental human rights, rights of the nation and fundamental freedoms do not have the right or moral authority to assert that their pension privileges must be preserved in respect of the periods when the Polish nation’s aspirations for independence, freedom and democracy were suppressed ...”
115. On 27 June 1996 PACE adopted Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems. It reads, in so far as relevant:
“1. The heritage of former communist totalitarian systems is not an easy one to handle. On an institutional level this heritage includes (over)centralisation, the militarisation of civilian institutions, bureaucratisation, monopolisation, and overregulation; on the level of society, it reaches from collectivism and conformism to blind obedience and other totalitarian thought patterns. To re-establish a civilised, liberal state under the rule of law on this basis is difficult - this is why the old structures and thought patterns have to be dismantled and overcome. ...
4. Thus a democratic state based on the rule of law must, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the totalitarian regime which is to be dismantled. A democratic state based on the rule of law has sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished - it cannot, and should not, however, cater to the desire for revenge instead of justice. It must instead respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves. A state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat, since it has ample means at its disposal which do not conflict with human rights and the rule of law, and are based upon the use of both criminal justice and administrative measures.
5. The Assembly recommends that member states dismantle the heritage of former communist totalitarian regimes by restructuring the old legal and institutional systems, a process which should be based on the principle(s) of:
i. demilitarisation, to ensure that the militarisation of essentially civilian institutions, such as the existence of military prison administration or troops of the Ministry of the Interior, which is typical of communist totalitarian systems, comes to an end;
ii. decentralisation, especially at local and regional levels and within state institutions;
iii. demonopolisation and privatisation, which are central to the construction of some kind of a market economy and of a pluralist society;
iv. debureaucratisation, which should reduce communist totalitarian over-regulation and transfer the power from the bureaucrats back to the citizens.
6. This process must include a transformation of mentalities (a transformation of hearts and minds) whose main goal should be to eliminate the fear of responsibility, and to eliminate as well the disrespect for diversity, extreme nationalism, intolerance, racism and xenophobia, which are part of the heritage of the old regimes. All of these should be replaced by democratic values such as tolerance, respect for diversity, subsidiarity and accountability for one’s actions.
7. The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt. ...
9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services. ....
11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or de-communisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.
12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.
13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process.
14. Furthermore, the Assembly recommends that employees discharged from their position on the basis of lustration laws should not in principle lose their previously accrued financial rights. In exceptional cases, where the ruling elite of the former regime awarded itself pension rights higher than those of the ordinary population, these should be reduced to the ordinary level. ...”
116. On 25 January 2006 PACE adopted Resolution 1481 (2006) on the need for international condemnation of crimes of totalitarian communist regimes in which it referred, in particular, to its Resolution 1096(1996), cited above (see paragraph 115 above). It read, in so far as relevant, as follows:
“2. The totalitarian communist regimes which ruled in central and eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism. ...
5. The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism).
6. Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.
7. The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions. ...
13. Furthermore, [the Assembly] calls on all communist or post-communist parties in its member states which have not yet done so to reassess the history of communism and their own past, clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity.
14. The Assembly believes that this clear position of the international community will pave the way to further reconciliation. Furthermore, it will hopefully encourage historians throughout the world to continue their research aimed at the determination and objective verification of what took place.”