DUDEK proti Polsku

FIRST SECTION

DECISION

Application no. 29204/21
Krystyna DUDEK
against Poland

The European Court of Human Rights (First Section), sitting on 26 June 2025 as a Committee composed of:

Raffaele Sabato, President,
Frédéric Krenc,
Anna Adamska-Gallant, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 29204/21) 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”) on 29 May 2021 by a Polish national, Ms Krystyna Dudek (“the applicant”), who was born in 1953, lives in Wrocław and, having been granted legal aid, was represented by Ms J. Flankowska, a lawyer practising in Wrocław;

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

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns alleged discrimination in granting social benefits to caretakers of disabled persons on the basis of their entitlement to old-age pension.

2. The applicant, a retired person in receipt of the minimum old-age pension – which required that the person had worked within an employment scheme subject to retirement rights –, provided full-time care for her disabled husband between 2018 and 2022 when the latter died.

3. In 2019, she applied for a nursing allowance (świadczenie pielęgnacyjne) which was higher than her pension but was denied this due to her established right to an old-age pension. Her appeals were dismissed, with authorities citing the Family Benefits Act, which excluded persons with an established right to old-age pension from the allowance irrespective of the amount of the pension.

4. In its final judgment of 30 November 2020, the Supreme Administrative Court acknowledged a divergence in case-law of administrative courts (including its own), but disagreed with the judgments relied upon by the applicant, which essentially allowed for the pensioner’s right to either (i) request to be paid the difference between the allowance and the pension, or to (ii) suspend their right to an old-age pension in order to receive the higher nursing allowance. The Supreme Administrative Court explained that these alternative solutions went beyond mere interpretation of the applicable provisions which did not allow for such possibilities.

5. The applicant cited Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention and complained that her right to equal treatment was violated in so far as she was refused the nursing allowance purely on the basis of her being a person entitled to an old-age pension. She further alleged that she was a victim of legal uncertainty stemming from the above-mentioned discrepancy in the domestic case-law.

THE COURT’S ASSESSMENT

6. The Government argued that the applicant had failed to exhaust domestic remedies by not introducing a constitutional complaint. The Court does not find it necessary to rule on the preliminary objection raised by the Government, since the applicant’s complaints are in any event inadmissible for the reasons outlined below.

1. Alleged discrimination in access to a welfare benefit

7. The applicant essentially complained that by refusing her the right to the nursing allowance based on the fact that she already had an established right to receive an old-age pension, the authorities had acted in a discriminatory fashion.

8. The Court will therefore examine the complaint raised by the applicant from the standpoint of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention and with Article 8 of the Convention, assuming that the complaint falls within the ambit of the latter two provisions. Under this approach, the applicant’s complaint depends on whether the differential treatment, in comparison to caregivers without an established right to an old-age pension, constituted discrimination under Article 14 of the Convention.

9. The Court reiterates that not every difference in treatment will amount to a violation of Article 14 of the Convention. Only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see, among many other authorities, Molla Sali v. Greece [GC], no. 20452/14, § 134, 19 December 2018). In the instant case, the applicant essentially contended that her entitlement to an old-age pension constituted “other status” on the basis of which she had been discriminated against.

10. In that context, the Court recalls its findings in the case Springett and Others v. United Kingdom (dec.), no. 34726/04, 27 April 2010:

“The Court does not consider that the fact of having, or not having, acquired a right to a welfare benefit can be considered to be an aspect of personal status within the meaning of Article 14. Unlike the principal grounds set out in Article 14, such as “sex”, “race” or “colour”, it is not an innate characteristic which applies from birth. Furthermore, unlike “religion”, “political or other opinion” or even place of residence, the fact of having acquired a right to a benefit does not relate to a core or personal belief or choice.”

11. Consequently, the Court finds that the fact of having acquired the right to an old-age pension, which requires the person to have worked within an employment scheme subject to retirement rights, is not a relevant “other status” which could bring Article 14 of the Convention into play. It follows that, since Article 14 does not apply, this complaint must be rejected as incompatible ratione materiae pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Divergent case-law as source of legal uncertainty

12. As regards the divergent case-law of domestic courts, the Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine this complaint from the standpoint of Article 1 of Protocol No. 1.

13. Firstly, it should be determined whether that Article is applicable in the instant case. The Court reiterates, in this connection, that Article 1 of Protocol No. 1 does not create a right to acquire property or to receive a particular benefit. Its protection applies only to existing possessions and, under certain circumstances, to the “legitimate expectation” of obtaining an asset; for the recognition of a possession consisting of a legitimate expectation, the applicant must have an assertable right which may not fall short of a sufficiently established, substantive proprietary interest under the national law (see Béláné Nagy v. Hungary [GC], no. 53080/13, §§ 74‑79, 13 December 2016). Thus, where the applicant does not satisfy the legal conditions laid down in domestic law for entitlement to any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1 (see Beeler v. Switzerland [GC], no. 78630/12, §§ 57-58, 20 October 2020).

14. Moreover, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007‑I; Domenech Aradilla and Rodríguez González v. Spain, nos. 32667/19 and 30807/20, § 81, 19 January 2023; and Valverde Digon v. Spain, no. 22386/19, § 49, 26 January 2023).

15. The Court notes that the national law explicitly excluded the applicant from being granted the nursing allowance. Consequently, the applicant did not have a possession within the meaning of Article 1 of Protocol No. 1. Likewise, given the existence of divergent domestic case-law regarding the applicant’s eligibility for the allowance, the Court considers that the latter cannot be said to have had a “legitimate expectation” either (see Petrescu and Others v. Romania (dec.), nos. 31390/18 and 9 others, §§ 70‑72, 7 March 2023, and the references cited therein). Thus, the applicant cannot rely on the divergent case-law as the source of a violation of her proprietary rights or expectations if, in the circumstances of the case, she cannot argue to have had a right or expectation.

16. Moreover, even assuming that the applicant had a legitimate expectation of being awarded the nursing allowance, the Court notes, as regards the divergent domestic case-law, that unlike in the case of Aliyeva and Others v. Azerbaijan (nos. 66249/16 and 6 others, §§ 132-34, 21 September 2021), the Supreme Administrative Court clearly addressed the issue raised by the applicant and gave reasons for their decision not to follow the case-law relied upon by the applicant.

17. In view of the foregoing, the Court concludes that the applicant did not have a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 to be awarded the nursing allowance. Accordingly, the complaint under this Convention Article is incompatible ratione materiae.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 July 2025.

Liv Tigerstedt Raffaele Sabato
Deputy Registrar President