Last Updated on May 22, 2019 by LawEuro
Communicated on 20 September 2018
FIRST SECTION
Application no. 34287/13
Władysław KŁAPUT
against Poland
lodged on 16 May 2013
STATEMENT OF FACTS
The applicant, Mr Władysław Kłaput, is a Polish national who was born in 1944 and lives in Lgota.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s professional activities
Since 1 July 1977 the applicant, as a farmer, had been paying contributions to the Farmers’ Social Security Fund (Kasa Rolniczego Ubezpieczenia Społecznego, “the KRUS”).
On 7 June 1991 the applicant registered a transport company, in addition to his farming activity, and on an unspecified date he informed the Tax Office in Wadowice (Urząd Skarbowy) of that fact. He paid income taxes in accordance with the law. He continued to pay social security contributions to the KRUS.
According to the applicant, his activity within the transport company was closely linked to farming.
2. Structural pension
On 11 March 2005 the Head of the Wadowice District Agency for the Restructurisation and Modernisation of Agriculture (Kierownik Biura Powiatowego Agencji Restrukturyzacji i Modernizacji Rolnictwa, “the Head of the Agency”) declared that the applicant fulfilled the preliminary conditions to obtain a so-called “structural pension” (renta strukturalna).
In order to obtain the pension, on 7 September 2005 the applicant donated his farm to his son.
On 10 October 2005 the Head of the Agency decided to award the applicant a structural pension of 1,631.48 Polish zlotys (PLN; approximately 420 euros (EUR)) for ten years.
The pension was indexed three times, reaching PLN 1,957.79 (approximately EUR 490) in 2009.
3. The Social Security Board’s intervention
On 30 October 2007 the Chrzanów Social Security Board (Zakład Ubezpieczeń Społecznych, “the ZUS”) gave a decision in which it declared that, since starting his business activity, the applicant had been ex lege affiliated with the ZUS. In particular, the ZUS established that the applicant could have been affiliated with the KRUS if he had made a declaration to that effect on 1 January 1997 (Section 2 of the 1996 Act; see also Relevant domestic law and practice below). However, the applicant had failed to make such a declaration. By a decision given on the same date, the ZUS ordered him to pay the contributions which he should have paid over the previous ten years, to the total amount of approximately PLN 114,000 (over EUR 30,000).
On 28 May 2008 the Kraków Regional Court (Sąd Okręgowy) dismissed the applicant’s appeals against the decisions of 30 October 2007.
The applicant submits that the enforcement of his debt to the ZUS was discontinued.
4. The KRUS intervention
(a) Revocation of the KRUS insurance
On 18 February 2009 the President of the KRUS declared that the applicant had not been insured with the KRUS since 1 July 1991, as he had been ex lege insured by the ZUS during that period.
On 27 February 2009 the President of the KRUS decided to return to the applicant the contributions paid by him during the previous five years in the total amount of approximately PLN 4,500 (EUR 985) and declared that the earlier contributions would not be returned, because of the statute of limitations.
On 9 July 2009 the Kraków Regional Court dismissed the applicant’s appeal against the decision of 18 February 2009. The applicant’s appeal against that judgment was rejected by the same court on 7 December 2009 for failure to pay a court fee of PLN 30 (EUR 7).
(b) Revocation of the structural pension
On 20 January 2010 the Head of the Agency reopened the proceedings concerning the structural pension. On 24 February 2010 he quashed his own decision of 10 October 2005 and refused to grant the applicant a structural pension. The applicant appealed, arguing that nobody in the KRUS had informed him that he should make any declaration and that he, as a farmer, did not have sufficient knowledge to follow the constantly-changing law. He submitted that he had been paying social security contributions to the KRUS, which had accepted them.
On 7 May 2010 the Director of the Office of the Agency for the Restructurisation and Modernisation of Agriculture for Małopolskie Region (Dyrektor Małopolskiego Oddziału Regionalnego Agencji Restrukturyzacji i Modernizacji Rolnictwa) upheld the challenged decision.
On 21 September 2010 the Kraków Regional Administrative Court (Wojewódzki Sąd Administracyjny) dismissed the applicant’s complaint after finding that he could not receive the structural pension, as he had not been insured by the KRUS for at least five years during the ten years preceding his request for such a pension.
On 1 August 2012 the Supreme Administrative Court (Naczelny Sąd Administracyjny) dismissed the applicant’s cassation appeal. This judgment was served on the applicant on 22 November 2012.
(c) Decision on the return of the pension received
On 29 December 2014 the Head of the Agency ordered the applicant to pay back the unduly obtained structural pension with interest in the amount of PLN 97,339 (approximately EUR 24,350). It appears that the enforcement of the decision is pending.
5. Criminal proceedings
On 21 December 2010 the Wadowice District Prosecutor (Prokurator Rejonowy) lodged with the Wadowice District Court (Sąd Rejonowy) a bill of indictment. The applicant was charged with fraud committed to the detriment of the Agency for the Restructurisation and Modernisation of Agriculture.
On 24 March 2011 the Wadowice District Court discontinued the proceedings after finding that the applicant had no intention to mislead the Agency in order to obtain a structural pension. The court also established that the evidence supported the conclusion that the applicant had no knowledge that he should have been insured with the ZUS, because he was a farmer and had only a basic education. At the same time, he had regularly paid contributions to the KRUS and had received from this institution a document confirming his insurance.
6. The applicant’s current situation
The applicant currently does not receive any old-age pension from the KRUS or the ZUS. Since he is considered not to have contributed to either of the social security systems he is not eligible for any other pension or benefits.
B. Relevant domestic law and practice
1. The Act of 18 December 1976 on social insurance of persons who conduct a business activity and of their families (Ustawa z dnia 18 grudnia 1976 r. o ubezpieczeniu społecznym osób prowadzących działalność gospodarczą oraz ich rodzin)
Section 2, until 14 November 1991 read, in so far as relevant:
“2. Persons who fulfil at the same time conditions to have social insurance described in this Act and the social insurance for individual farmers and the members of their families fall under the insurance scheme described in this Act.”
2. The Farmers’ Social Security Act of 20 December 1990 (Ustawa z dnia 20 grudnia 1990 r. o ubezpieczeniu społecznym rolników)
Section 16, until 14 November 1991 read, in so far as relevant:
“1. The following shall fall ex lege under the retirement and disability insurance scheme:
1) a farmer, whose farm comprises more than one conversion hectare (hektar przeliczeniowy) of farming land or which includes a special field […]
3. The provisions 1 and 2 (of this Section) shall not be applicable to a person who falls under a different social insurance scheme or who has an established right to a retirement or disability pension.”
Section 62 until 14 November 1991 read, in so far as relevant:
“1. The [Farmers’ Social Security] Fund conducts activities as regards:
1) service of the insured persons and beneficiaries in cases concerning inclusion by the insurance system …”
3. The Act of 12 September 1996 on amendments to the Farmers’ Social Security Act (Ustawa z dnia 12 września 1996 r. o zmianie ustawy o ubezpieczeniu społecznym rolników).
This Act entered into force on 1 January 1997. Section 2, which was in force until 1 May 2004, read, in so far as relevant:
“A farmer or a member of his household who, on the date of entry into force of this Act fell under another insurance scheme because of his conducting a business activity, but who is not employed or in service, and who fulfils other conditions to fall ex lege under the farmers’ social security scheme to the full extent, can lodge with [the ZUS] or [the KRUS] a statement, that he or she wishes to fall under such insurance to the exclusion of other social insurance …”
4. The Cabinet’s Ordinance of 30 April 2004 on the particular conditions and procedure for providing financial aid for obtaining structural pensions, covered by the rural development programme (Rozporządzenie Rady Ministrów z dnia 30 kwietnia 2004 r. w sprawie szczegółowych warunków i trybu udzielania pomocy finansowej na uzyskiwanie rent strukturalnych objętej planem rozwoju obszarów wiejskich)
Paragraph 4 reads, in so far as relevant
“A structural pension shall be granted to a … farmer, if he or she fulfils jointly the following criteria: …
2) has conducted farming activity continuously at a farm for at least ten years before making a request for a structural pension, and during that period fell under the retirement and disability insurance described in the provisions concerning farmers’ social insurance for at least five years …”
COMPLAINTS
1. The applicant, without relying on any provision of the Convention, complains that he was deprived not only of the structural pension, but also of any means of subsistence. He submits that no one informed him that he should have lodged a declaration as to his preference in the insurance system, and that by paying contributions to the KRUS for more than thirty years he had sufficiently manifested his wish to be insured by that institution. His complaint constitutes, in substance, a complaint under Article 1 of Protocol No. 1 to the Convention.
2. The applicant also complains that the reopening of the proceedings in his case constituted a breach of the principle of legal certainty in violation of Article 6 § 1 of the Convention.
QUESTIONS TO THE PARTIES
1. As regards the reopening of the proceedings concerning the structural pension leading to the revocation of the Head of the Wadowice District Agency’s decision of 10 October 2005:
(a) Does the principle of legal certainty apply to a structural pension decision in the circumstances of the instant case (see Brumarescu v. Romania [GC], no. 28114/95 § 61, ECHR 1999-VI)?
b) In the affirmative, was there a breach of the principle of legal certainty as guaranteed by Article 6 § 1 of the Convention?
2. As regards the decision to revoke the applicant’s right to a structural pension, was the applicant deprived of his possessions within the meaning of Article 1 of Protocol No. 1? If so, was this interference justified under this provision? In particular, was it proportionate?
3. Did that deprivation impose an excessive individual burden on the applicant? Reference is made to the case Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V.
4. The Government are invited to submit information concerning the current situation of the applicant, in particular, whether he receives a pension or any other benefits.
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