DĘBOWSKA A OSTATNÍ proti Polsku

FIRST SECTION

DECISION

Application no. 1752/14
Jadwiga DĘBOWSKA against Poland
and 10 other applications
(see list appended)

The European Court of Human Rights (First Section), sitting on 6 February 2024 as a Committee composed of:

Lətif Hüseynov, President,
Krzysztof Wojtyczek,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the applications against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the applications to the Polish Government (“the Government”) represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs;

the parties’ observations;

the comments submitted by the Helsinki Foundation for Human Rights which was granted leave to intervene by the President of the Section;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns allegations that a legislative amendment introduced in 2012 deprived the applicants of an allowance that had previously been granted.

2. On various dates the applicants obtained a nursing allowance (świadczenie pielęgnacyjne) in the amount of 520 Polish zlotys (PLN) per month in respect of their family members who had been found to require constant care by another person.

3. The 2012 Act Amending the Act on Family Allowances and Certain Other Acts (“the 2012 Amending Act”) entered into force on 1 January 2013. On the basis of this act, the applicants lost entitlement to the nursing allowance from 30 June 2013. The 2012 Amending Act also provided that the disability of the person being cared for had to have arisen no later than their eighteenth birthday, or their twenty-fifth birthday if they attended school or university (for details of domestic law and practice see Łuczkiewicz v. Poland (dec.), no. 1464/14, §§ 9-50, 5 December 2023).

4. In judgment no. K 27/13 of 5 December 2013, the Constitutional Court held that the provision of the 2012 Amending Act by virtue of which all previous administrative decisions granting nursing allowance would expire by operation of law were incompatible with the Constitution.

5. The new 2014 Act on the Establishment and Payment of Carer’s Benefit (“the 2014 Act”) entered into force on 15 May 2014. Subsequently, the applicants applied for the newly established carer’s benefit (zasiłek dla opiekunów).

6. On various dates in June and September 2014 the applicants were granted carer’s benefits under the 2014 Act. The new carer’s benefit was granted in the same amount (PLN 520 per month) as the previous nursing allowance and for an indefinite period. Furthermore, the carer’s benefit was paid to the applicants retrospectively, that is, as from 1 July 2013 and with statutory interest.

7. In a judgment no. K 38/13 of 21 October 2014 the Constitutional Court held that the provision of the 2012 Amending Act which deprived carers of disabled persons whose disability had arisen after attaining the age of eighteen, or twenty-five in the case of attending school or university, of entitlement to the nursing allowance, was incompatible with the Constitution.

8. The applicant in application no. 1752/14 (see appended table) filed an application for nursing allowance. On 17 October 2017 the Białystok Local Government Board of Appel granted her the nursing allowance in the amount of PLN 1,406 from 1 July 2017 for an infinite period of time. The court held that in accordance with the well-established case-law of the administrative courts the provision declared unconstitutional by the Constitutional Court on 21 October 2014 had not been binding, therefore the applicant had fulfilled the criteria for the nursing allowance.

9. Identical rulings were given on 8 June and 26 October 2017 concerning the applicants in application nos. 2172/14 and 3539/14, respectively (see appended table). In each case the applicants received the new nursing allowance in the amount of PLN 1,406.

10. In subsequent years the amount of the allowance was increased.

11. The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about having been divested – by operation of the 2012 Amending Act – of their acquired right to the nursing allowance. They also complained, under Article 1 of Protocol No. 1 and Article 14 in conjunction with Article 1 of Protocol No. 1, about the new eligibility condition for nursing allowance added by the 2012 Amending Act, namely that the disability of the person being cared for had to have arisen before he or she had attained the age of eighteen or twenty-five.

THE COURT’S ASSESSMENT

12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

13. The Court notes that on 26 August 2019 the applicant in application no. 2180/14 died and the Court was informed that Mr Marek Roman Witowski, her husband, wished to pursue the application in his late wife’s stead. The Court notes that the Government did not contest the standing of the applicant’s heir to pursue the application in her stead. Therefore, and having regard to the subject matter of the complaints, the Court considers that Mr Witowski has standing to continue the proceedings in his wife’s stead.

14. The Court further notes that it has recently examined a case which raised an issue identical to the present case and decided to strike the application out of its list of cases (see Łuczkiewicz, cited above). The Court considers that there are no reasons to depart from its findings in that case.

15. In particular, with respect to the applicants’ first complaint about being divested of entitlement to nursing allowance by operation of the 2012 Amending Act the Court notes the following. On 5 December 2013 the Constitutional Court (case no. K 27/13) found unconstitutional the expiry, by operation of law, of the applicant’s right to nursing allowance. Subsequently, the 2014 Act introduced a new carer’s benefit. All the applicants were granted this benefit (see paragraph 6 above).

16. The Court thus considers that, following the enactment of the 2014 Act and the grant of carer’s benefit to the applicants in the same amount, paid retrospectively with statutory interest, the circumstances complained of by the applicants no longer obtain and the effects of a possible violation of the Convention on account of those circumstances have been redressed (see Łuczkiewicz, cited above, § 79). The Court finds therefore that both conditions for the application of Article 37 § 1 (b) of the Convention are met (see El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, §§ 30-34, 20 December 2007, and Vadalà v. Italy (dec.), no. 14656/15, § 35, 7 November 2023).

17. As to the applicants’ complaint under Article 14 in conjunction with Article 1 of Protocol No. 1 to the Convention, the Court notes that in judgment no. K 38/13 of 21 October 2014 the Constitutional Court held that such condition was incompatible with the Constitution (see Łuczkiewicz, cited above, §§ 23‑24). While no new legislative amendment with a view to implementing the relevant judgment of the Constitutional Court had been adopted, the Court nevertheless took note of the Government’s assertion that a new practice of the administrative courts had developed which in fact implemented the Constitutional Court’s judgment (ibid., §§ 83‑85). The Government referred to 450 judgments of the regional administrative courts and 40 judgments of the Supreme Administrative Court which confirmed that practice.

18. Indeed, in the case under consideration three applicants applied and obtained the new nursing allowance (see paragraphs 8 and 9 above). With respect to three other applicants (application nos. 2000/14, 2027/14 and 2057/14, see appended table) the Court notes that the persons to whom the applicants were providing care had died on various dates in 2017 or 2018 which resulted in the proceedings concerning benefits in respect of those persons being discontinued. The Court has no information whether the remaining four applicants applied for the new nursing allowance, nevertheless, it is clear that they could have done so.

19. Consequently, the Court finds that the circumstances also under this complaint no longer obtain and the effects of a possible violation of the Convention on account of those circumstances have likewise been redressed (see Łuczkiewicz, cited above, § 85).

20. Accordingly, the matter giving rise to the present applications, under Article 1 of Protocol No. 1 and Article 14 in conjunction with Article 1 of Protocol No. 1, can be considered to have been “resolved” within the meaning of Article 37 § 1 (b) of the Convention (see Łuczkiewicz, cited above, § 86). The Court also reiterates that it is not required, for the purposes of Article 37 § 1 (b) of the Convention, that the national authorities acknowledge a violation of the Convention or that the applicant, in addition to having obtained a resolution of the matter, is also granted compensation (see H.P. v. Denmark (dec.), no. 55607/09, § 78, 13 December 2016). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue the examination of the complaints at issue under Article 37 § 1 in fine.

21. Accordingly, the applications should be struck out of the Court’s list of cases.

For these reasons, the Court, unanimously,

Decides to join the applications;

Decides to strike the applications out of its list of cases.

Done in English and notified in writing on 7 March 2024.

Liv Tigerstedt Lətif Hüseynov
Deputy Registrar President

APPENDIX

List of cases: