Komentarz autorstwa Marcina Szweda (w j. angielskim) dot. implementacji przez polskie władze wyroku Europejskiego Trybunału Praw Człowieka Moskal przeciwko Polsce. W wyroku Trybunał uznał, że poprzez błędną decyzję ZUS i odebranie z dnia na dzień skarżącej przyznanych świadczeń naruszyło jej zaufanie do państwa. Decyzja taka była także naruszeniem prawa obywatela do dobrej administracji.  

    Although many people associate European Court of Human Rights only with cases related to controversial issues like right to abortion, rights of LGBT persons or freedom of religion, there are not so many applications from Poland concerning these problems. It may be surprising for many but among “polish applications” pending presently at ECHR there is much higher number of those concerning problems with… social security system. First group of such cases includes complaints on functioning of so called “desubekisation act” 1) (“desubekisation” is a polish colloquial term for a process of revoking the privileges of the officers of communist security service) which restricted rights to pension of former communist security service workers – according to medias 2) more than four hundred persons affected by this act applied to Strasbourg. The second group of “pension cases” are complaints about revocation of right to an early retirement pension on the basis of the article 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund 3). First ECHR judgment on this topic was verdict in case “Moskal v. Poland” 4) which significance and impact on polish legal system would be the subject of this article.
    
    The applicant, Ms Maria Moskal, was polish national who was granted, in 2001, the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care (the son of Ms Moskal suffered from serious lung diseases and allergies) – so called “EWK pension”. In order to receive such right, the applicant needed to resign from her job – that was one of requirements prescribed by the law. After ten months Ms Moskal was informed that “proceedings concerning the applicant's right to a pension had been re-opened ex officio and that, as a result, <<the medical certificate attached to her application for a pension had been found to raise doubts [as to its accuracy]>>” 5) and, what is more, that Rzeszów Social Security Board issued a decision revoking his previous decision and refusing her the right to an early retirement pension. The decision was issued on the basis that “the condition with which the child had been diagnosed was not enumerated in the [1989] Ordinance 6), and the analysis of the level of severity and the course [of the disease] did not indicate an impairment of bodily functions to such a degree as to justify the award of the pension”. In other words, Social Security Board corrected its own mistake made in the first decision. Ms Moskal appealed against this decision and then, after exhausting domestic remedies, she applied to European Court of Human Rights.

    The European Court of Human Rights considering the case of Ms. Moskal decided that the behaviour of polish social security authorities was against the Convention. The Court did not refuse authorities the right to correct their own mistakes but reminded that all actions of public authorities should be consistent with the principle of proportionality, which is defined by the Court as the fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. The Court referred also to the so called “principle of good governance” which “requires that where an issue in the general interest is at stake it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency”. Applying that rules to the present case, Court observed that “(…) as a result of the impugned measure, the applicant was faced, practically from one day to the next, with the total loss of her early-retirement pension, which constituted her sole source of income. Moreover, the Court is aware of the potential risk that, in view of her age and the economic reality in the country, particularly in the undeveloped Podkarpacki region, the applicant might have considerable difficulty in securing new employment”. The Court also took into consideration that time between granting Ms Moskal the right to an early retirement pension and the decision revoking it was relatively long what made refusing the right to pension even more harmful. All in all, the Court concluded that “the authorities failed in their duty to act in good time and in an appropriate and consistent manner” and that in result of their action the burden placed on the applicant was excessive which means that there has been a violation of art.1 Protocol No. 1.

    The success of Ms Moskal gave hope for the rest of about one hundred twenty applicants complaining on the revocation of the right to an early retirement pensions but we have to remember that judgment does not guarantee that every next verdict would also be favourable to the applicant. We have to keep in mind, that the Court did not refuse the authorities the right to correct their own mistakes or refusing pension rights to persons, who were previously entitled to them even for a very long time. For example, in case Wieczorek v. Poland 7) the Court did not found the violation of art. 1 Prot. 1 in revocation of right to disability pension of woman, who has been receiving it for fifteen years after the medical examination showed, that she is not disable to work anymore. But even taking it into account, the case Moskal v. Poland should not be treated as insignificant, individual case in which the realization of judgment is reduced to payment of compensation. I think that this verdict shows few problems of both polish legislation and practice of public authorities.

    First of all, polish authorities should make necessary amendments to article 114 passage 1a of the Law on retirement and disability pensions paid from the Social Insurance Fund, which provides that entitlement to the pension may be re-established ex officio if after the decision becomes final it turns out that submitted evidence did not provide a basis for determining entitlement to a pension or their amount. This provision has been repeatedly criticized by the doctrine of law – Mr. Jerzy Kuźniar, judge of the polish Supreme Court, said that: this provision allows  for an unlimited  verification of decisions and consequently frees pensions agencies with responsibility for the subsequent decisions 8) . Adam Bodnar and Barbara Grabowska from Helsinki Foundation for Human Rights suggested that this provision may violate article 2 of Consitution (principle of democratic state of law) and resulting from this article principles of protection of acquired rights as also principle of the loyalty of State to the citizens 9). They also criticize the possibility of the resumption of proceedings in situations when the decision subject to resumption was previously controlled by the courts of two instances (or even the Supreme Court) and that the authority may change the decision due to its own failures, although it has a value of legitimacy. In conclusion, mechanism provided by article 114, according to prof. Łętowska 10), “creates a disproportionate risk to recipients of benefits by depriving the effects of the legitimacy of the decisions en bloc, and so that it enables sanitation of every error or negligence made by Social Security Administration”. Unfortunately, polish authorities has not yet taken any actions to change controversial provision.

    But amendments in law would not be enough without significant changes in practice of polish social security agencies and generally – in practice of all polish public authorities. It is just yet another proof, that public authorities in our country apply the rules of law very strictly, basing only on the literal interpretation. Such “abstract things” like human rights provided in Constitution or ECHR just does not exist for them because they require not only “reading the law” and simple applying in schematic way to individual cases, but also taking into account specific individual circumstances of every single case. In many situations literal interpretation should be abandoned in favour of functional interpretation, which would provide compliance with Constitution and Convention. Social security authorities should distinguish between cases where the mistake was made only because of authorities’ fault and where it was fraudulently induced by the person who applies for the right to benefit. They should also take into consideration what would be the effects of revocation of the right to pension and generally look at single case in more individual way. Prof. Łętowska suggests that current attitude of social security authorities may be caused by too casuistic formulating of provisions of social security law, which: “favours the language methods of interpretations, without considering the broader - constitutional (e.g. human rights, international soft law), systemic and multicentre context; it favours a “static” interpretation (…) which focuses rather on the letter of law without reflection on its spirit. But in my opinion, this very strict and schematic interpretation of law and ignorance of the ECHR standards are a general problems throughout public administration in Poland.

    Prof. Łętowska doubts that our country quickly and correctly implement the judgment. She states that: “it is unknown who should take the systemic and holistic approach in finding the reasons for and sources of bad governance and remove the errors”. I cannot disagree with her – we can find many examples of judgments of ECHR which have not been implemented yet – one of them is verdict Bączkowski v. Poland 11) which requires making some amendments in Law on assemblies. As I said before, judgment Moskal v. Poland requires not only law amendments but also significant changes in practice of public authorities, what makes it even more difficult to implement. It cannot be done without education of polish officials and judges on human rights and ECHR standards and generally popularization knowledge about Convention and judicature of Strasbourg Court. In Recommendation Rec(2002)13 of the Committee of Ministers to member states on the publication and dissemination in the member states of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights, the Committee advises, among others, the parties to rapid and widely publishing of the judgments. I went to the website of Ministry of Justice and I found out that there is special subpage dedicated to judiciary of European Court of Human Rights. One can find here judgments in “polish cases” since 1999 and… five judgments concerning other countries. I chose category of judgments from 2009 and… I noticed that Ministry of Justice did not publish here Moskal v. Poland case. Probably Ministry does not consider this judgment as an important one, what is quite surprising to me because implementation of this verdict is important not only because of the reasons described in this article, such as providing compliance with Constitution and Convention, protecting the rights of  people who receive social benefits in good faith, providing certainty of law and final decisions etc., but also from purely financial reasons – our country would have to pay Ms Moskal exceptionally high compensation in amount of 15 thousands euros. If the rest of 120 applicants would be granted by ECHR the same high compensation it could be “painful” to polish budget.


Marcin Szwed

1)  Ustawa z dnia 23 stycznia 2009 r. o zmianie ustawy o zaopatrzeniu 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 (Dz. U. Nr 24, poz. 145)
2)  http://wyborcza.pl/1,75478,8173082,Dezubekizacja_do_Strasburga.html
3)  ustawa z dnia 17 grudnia 1998 r. o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych (Dz. U. Nr 162, poz. 1118)
4)  Judgment of chamber of seven judges, issued on 15-th September 2009, app. no. 10373/05
5)  por. § 14 of the judgment
6)  Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki (Dz. U. Nr 28, poz. 149)
7)  Judgment of chamber of seven judges of 8 december 2009, app. No. 18176/05
8)  Jerzy Kuźniar, „Ponowne ustalenie prawa do świadczeń emerytalno-rentowych”, Praca i Zabezpieczenie Społeczne 6/2004, p. 29
9)  Adam Bodnar, Barbara Grabowska, „Glosa do wyroku Europejskiego Trybunału Praw Człowieka w sprawie Moskal przeciwko Polsce”, Praca i Zabezpieczenie Społeczne 6/2010, p. 32
10) Ewa Łętowska, Czekając na Godota, czyli jak wykonywać wyroki ETPCz (uwagi na tle sprawy Moskal v. Polska), Europejski Przegląd Sądowy, 2/2011
11) Judgment of chamber of seven judges of 3 May 2007, app. No. 1543/06