CASE OF LASOTA v. POLAND
(Application no. 6762/04)
2 October 2012
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Lasota v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson, President,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 11 September 2012,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings concerning the grant and revocation of the EWK pension
B. The applicant’s financial situation following the revocation of the EWK pension
C. Other EWK cases pending before the Court
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Social security system
“The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
On 1 July 2004 a new subparagraph 114 (1) a was added, which reads as follows:
“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”
B. Cassation appeal
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
C. Constitutional Court’s judgments
1. Judgment no. K 18/99
2. Judgment no. K5/11
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
“Every natural or legal person is entitled to the peaceful enjoyment of her possessions. No one shall be deprived of her possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The Government’s preliminary objections
(i) The parties’ submissions
(ii) The Court’s assessment
(b) Non-exhaustion of domestic remedies
(i) The parties’ submissions
(ii) The Court’s assessment
(c) Six months
2. Conclusion on admissibility
1. The parties’ submissions
(a) The applicant
(b) The Government
2. The Court’s assessment
(a) General principles
(b) Application of the above principles to the present case
(i) Whether there has been an interference with the applicant’s possessions
(ii) Lawfulness of the interference and legitimate aim
The Government further maintained that the applicant’s wife’s little farm might have been a source of income for him. However, they failed to submit any evidence that after the revocation of the EWK pension he indeed derived any income from the farm. Moreover, the farm clearly did not constitute his main source of income, since for twenty-five years he had been employed outside the farm in a non-agricultural enterprise.
In so far as the Government listed various benefits available in Poland, the Court considers that they have failed to specify which of those benefits, if any, were available in the applicant’s situation. It should be noted that the applicant submitted that he had not been eligible to apply for any welfare benefits.
II. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 8 OF THE CONVENTION
He also complained under Article 8 of the Convention of an interference with his right to respect for his private and family life in that by divesting him of the EWK pension the authorities had deprived him of his sole source of income and therefore financial resources indispensable for his livelihood.
III. REMAINING COMPLAINTS
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
1. Declares unanimously the complaints under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention admissible and the remainder of the application inadmissible;
2. Holds by five votes to two that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
3. Holds unanimously that it is not necessary to examine separately the applicant’s complaints under Articles 6 and 8 of the Convention;
4. Holds by five votes to two
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the amount of EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of both pecuniary and non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 October 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı David
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint partly dissenting opinion of Judges Hirvelä and Bianku is annexed to this judgment.
JOINT PARTLY DISSENTING OPINION OF
JUDGES HIRVELÄ AND BIANKU
The instant case raises issues similar to those dealt with by the Court in Moskal v. Poland (no. 10373/05) and Lewandowski v. Poland (38459/03). The majority in those cases found that there had been a breach of Article 1 of Protocol No. 1 to the Convention. We dissented. We dissent in this case also, for the reasons we gave in our Joint Partly Dissenting Opinion in the Moskal case and in the Lewandowski case.