George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

A list of all the applicants is set out in the appendix .

The so - called “ public security authorities ” ( “ aparat bezpieczeństwa publicznego ” or “ organy bezpieczeństwa publicznego ) , i.e. a NORP communist secret police apparatus , operated in DATE .

The apparatus , which was reshaped several times , consisted of different services and institutions , comprising the political police and special armed forces . It was patterned on the ORG ( Народный комиссариат внутренних дел/Narodnyy PERSON , i.e. the NORP ORG for ORG ) and the ORG ( PERSON государственной безопасности/Komitet Gosudarstvennoy Bezopasnosti , i.e. ORG ) and established ( under the supervision of the NKVD ) in DATE with a view to securing NORP rule and combating , suppressing and eliminating groups of political opposition , including the post - war underground resistance against Communism and ORG . In DATE these organs were in charge of prisons and labour camps ; at that time , they were also competent to conduct criminal investigations under the rules of criminal procedure ( see ORG v. GPE DATE . ) , no . CARDINAL , ECHR CARDINAL-V ) .

DATE , when the level and nature of repression changed , their tasks involved in the protection of the communist system included , among other things , the control and infiltration of NORP society secured by its own members and through a system of paid or unpaid informers and secret collaborators , denunciation , monitoring of persons in , or cooperating with , the opposition , political opponents , priests and other persons suspected of being in any way associated with anti - communist ideas or critical of the communist party ’s programme , its role and members

NORP The general information concerning the public security service published on the official website of ORG for ORG against ORG ( PERSON – Komisja PERSON przeciwko GPE Polskiemu – “ the ORG ” ) reads , in so far as relevant , as follows :

“ Since DATE until DATE the functionaries of the security services constituted “ the armed arm of the communist party ” . The main goal of the services was to protect the communists from society and to eliminate opposition .

First , the ORG operated within ORG which was created in DATE . The executive staff of ORG had been trained in GPE school in LANGUAGE ( GPE ) . Apart from the central office , the ‘ soviet advisers’ were sent to all newly - created regional ORG throughout GPE .

The official activity of ORG started on DATE and its wide range of power was not limited by law . ORG focused on achieving goals set by ORG ( ORG ) [ PERSON ] and later ORG ( PZPR ) [ PERSON ] . At the peak of its expansion in DATE there were CARDINAL functionaries working within the ministry structures . Additionally , a network of CARDINAL informers ( in DATE ) collaborated with the ministry . The informers were recruited by means of brutal intimidation or promises of financial gain . Nevertheless , some of the informers , especially members of ORG , volunteered for the work .

Offices of Public Security and their informants kept under surveillance the political parties , national and local public administration , social and religious organisations , factory workers and , in general , social attitudes . CARDINAL of adult NORP were registered in the ministry ’s files because they constituted ‘ a dubious ORG .

In DATE ORG was replaced by ORG ( MSW ) and ORG . In DATE the ORG was disbanded and its competences and staff transferred to the Ministry of [ the ] Interior ....

ORG ( ORG ) operated in GPE DATE . The fall of the communist system in GPE in DATE brought an end to the existence of this political police and organ of terror , which was hostile to NORP society throughout its existence . ... ”

The Security Service operated through the following main structures : ORG ( for intelligence ) , PERSON ( for counter - intelligence ) ; PERSON ( for anti - State activities against the country in the sphere of ideology , culture and education ; the tasks involved , inter alia , infiltration of artistic , intellectual , academic , journalist and similar circles , finding secret collaborators within those groups as well as monitoring of targeted persons ) , ORG ( church and religious associations ; the tasks involved infiltration of targeted groups , monitoring etc . ) , ORG ( for protection of industry and anti - State activities in industry and within workers unions and circles ) , ORG ( Biuro Paszportów ) , the so - called ORG " ( cipher ) ; Bureau " B " ( observation ) and ORG ( oversight of correspondence ) , Bureau “ T ” ( operational techniques ) . The subordinate units at local level had departments organised in the same way . In DATE they were organised in regional ( wojewódzkie ) and district ( rejonowe ) offices for internal affairs ( urzędy spraw wewnętrznych ) .

Following DATE of Communism in GPE , ORG was dissolved by virtue of the law of CARDINAL ApriCARDINAL DATE on ORG ( ustawa o Urzędzie Ochrony Państwa ) ( “ the DATE LAW ) , a new body responsible for intelligence and counter - intelligence . At that time ORG comprised CARDINAL persons , including CARDINAL functionaries . They could be re - employed by ORG on condition that they successfully passed a vetting procedure , which CARDINAL officers underwent . CARDINAL persons were eventually found suitable for re - employment and CARDINAL were vetted negatively and not retained ( see also paragraphs CARDINAL below ) .

On DATE ORG enacted the LAW on amendments to the law on old - age pensions of professional soldiers and their families and to the law on old - age pensions of functionaries of the police , ORG , ORG , ORG , ORG , ORG , ORG , ORG , ORG and their families ( ustawa o zmianie ustawy o zaopatrzeniu emerytalnym żołnierzy zawodowych oraz ich rodzin oraz ustawy o zaopatrzeniu emerytalnym funkcjonariuszy ORG , PERSON , PERSON , PERSON , ORG , ORG Ochrony Rządu , ORG i PERSON oraz ich rodzin – “ the CARDINAL Act ” ) . LAW , which entered into force on DATE , introduced new rules for the calculation of the pensions of former functionaries of the ORG security service into the law of DATE on old - age pensions of functionaries of the police , ORG , ORG , ORG , ORG , ORG , ORG , ORG , ORG , ORG and their families ( ustawa o zaopatrzeniu emerytalnym funkcjonariuszy ORG , PERSON , PERSON , PERSON , ORG , ORG Ochrony Rządu , ORG i PERSON oraz ich rodzin –“the CARDINAL LAW ” ) . In particular , one of the coefficients relevant for the calculation of pensions of former functionaries was lowered from PERCENT to PERCENT for DATE of service with the former communist State security authorities in DATE ( see also paragraphs CARDINAL below ) .

For the purposes of LAW , the ORG security authorities are those listed in the law of DATE on the disclosure of information of documents of the ORG security authorities in DATE and the content of such documents ( ustawa o ujawnianiu informacji o dokumentach organów bezpieczeństwa państwa z lat DATE oraz treści tych dokumentów – “ the CARDINAL Act ” ( see also paragraphs CARDINAL below ) .

The applicant , Mr PERSON , is a NORP national who was born in DATE . He lives in PERSON .

DATE the applicant served in ORG , holding various posts . Starting as an operational inspector in DATE , he was promoted to the post of Deputy Commandant of ORG ( PERSON ) responsible for ORG . In DATE , on his dismissal from service , he held the rank of major .

On DATE the Director of ORG ( PERSON i Administracji ) , pursuant to section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of LAW and on the basis of information received from the ORG ( see also paragraphs CARDINAL below ) , issued a decision on the re - assessment of the applicant ’s pension , whereby his benefit was reduced from MONEY ( ORG ) to ORG CARDINAL DATE . According to the applicant , after taxation , the net amount of his current pension was ORG CARDINAL,CARDINAL.CARDINAL .

The applicant lodged an appeal against that decision with ORG ( PERSON – ORG ) . He sought to have his previous pension restored , submitting that the impugned decision was based on legal provisions which were incompatible with ORG , DATE , QUANTITY and DATE of the LAW ( see also paragraphs CARDINAL below ) and that it had been contrary to international law .

On DATE ORG dismissed his appeal as unfounded . Relying on ORG judgment of DATE , whereby a challenge to the constitutionality of the DATE Act had meanwhile been examined and rejected ( see also paragraphs CARDINAL - CARDINAL below ) , the court held that the relevant provisions of LAW had been applied correctly in the applicant ’s case .

The applicant lodged an appeal on DATE . According to the most recent information supplied by the applicant on DATE , the proceedings were still pending before ORG ( ORG ) and no hearing date had yet been set .

The application was lodged by CARDINAL NORP nationals : Mr PERSON ( “ the first applicant ” ) was born in DATE , Mr PERSON ( “ the second applicant ” ) was born in DATE , PERSON ( “ the third applicant ” ) was born in DATE , PERSON ( “ the fourth applicant ” ) was born in DATE , PERSON ( “ the fifth applicant ” ) was born in DATE , Mr PERSON ( “ the sixth applicant ” ) was born in DATE , PERSON ( “ the seventh applicant ” ) was born in DATE , ORG ( “ the eighth applicant ” ) was born in DATE , Ms Elżbieta Duda ( “ the ninth applicant ” ) was born in DATE , PERSON ( “ the tenth applicant ” ) was born in DATE and PERSON ( “ the eleventh applicant ” ) was born in DATE . The applicants , except for the fourth applicant who lives in GPE , live in GPE . In the proceedings before the ORG they were represented by PERSON , a lawyer practising in GPE .

Except for the first applicant who was positively vetted in DATE , the remaining applicants were not subjected to the vetting procedure ( see also paragraph CARDINAL above and paragraphs CARDINAL below ) .

On DATE the Director of ORG , pursuant to section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and on the basis of information received from the ORG , issued a decision on the re - assessment of the first applicant ’s pension , whereby his benefit was reduced from ORG CARDINAL ( gross ) to ORG DATE . After taxation , the net amount of his current pension was PLN MONEY .

Similar decisions reducing their pensions were issued in respect of the remaining applicants :

– on DATE the second applicant ’s benefit was reduced from ORG MONEY . DATE ( gross ) to ORG CARDINAL,CARDINAL.CARDINAL ( gross ) . After taxation , the net amount of his current pension was PLN CARDINAL,CARDINAL.CARDINAL ;

– on DATE the third applicant ’s retirement pension was reduced to ORG CARDINAL,CARDINAL.CARDINAL ( gross)/PLN CARDINAL ( net ) ; the applicant failed to indicate the previous amount . However , at the same time , payment of this benefit was suspended because she had also the right to a disability pension , which was more advantageous . The amount of her current disability pension was PLN MONEY ;

– on DATE the fourth applicant ’s retirement pension was reduced to ORG CARDINAL,CARDINAL.CARDINAL ( gross ) ; the applicant failed to indicate the previous amount . However , at the same time , payment of this benefit was suspended because she had also the right to a disability pension , which was more advantageous . The amount of her current disability pension was ORG CARDINAL ( gross ) ;

– on DATE the fifth applicant ’s benefit was reduced to ORG MONEY ( gross)/PLN CARDINAL ( net ) ; the applicant failed to indicate the previous amount ;

– on DATE the sixth applicant ’s benefit was reduced from ORG ) to PLN MONEY ( gross ) ;

– on DATE the seventh applicant ’s benefit was reduced from ORG MONEY ( net ) to ORG gross)/PLN CARDINAL ( net ) ;

– on DATE the CARDINAL applicant ’s benefit was reduced to ORG CARDINAL ( gross ) ; the applicant failed to indicate the previous amount ;

– on DATE the ninth applicant ’s retirement pension was reduced from ORG to ORG but , at the same time , payment of this benefit was suspended because she had also the right to a disability pension , which was more advantageous . The amount of her current disability pension was PLN CARDINAL,CARDINAL.CARDINAL ;

– on DATE the tenth applicant ’s old - age pension was reduced from ORG to PLN CARDINAL,CARDINAL.CARDINAL ;

– on DATE the eleventh applicant ’s old - age pension was reduced from ORG CARDINAL,CARDINAL.CARDINAL to PLN CARDINAL,CARDINAL.CARDINAL .

The applicants on various dates appealed to ORG , submitting in essence that the social security authority had misinterpreted the provisions of the DATE Act and that the impugned decisions were unlawful and contrary to the LAW and international treaties ratified by GPE . In particular , they relied on ORG , DATE , CARDINAL and QUANTITY of the LAW , asserting that the legislature had overstepped its competence because it had imposed collective punishment on them , that it had failed to respect the principle of protection of acquired rights and that they were discriminated against on account of their service in the ORG security authorities . They also invoked Articles CARDINAL , DATE , CARDINAL and CARDINAL of the Convention and LAW No . CARDINAL to the Convention .

The applicants have not informed the ORG about the outcome of the appeal proceedings , except for the second applicant who produced a copy of ORG decision of DATE , refusing to entertain his cassation appeal against the judgment of ORG . It emerges from that decision that ORG dismissed the applicant ’s appeal against the pension decision on CARDINAL DATE and that his appeal against that judgment was dismissed by ORG on DATE .

The applicant , PERSON , is a NORP national born in DATE and living in GPE . In the proceedings before the ORG she was represented by PERSON , a lawyer practising in GPE .

From DATE to CARDINAL DATE the applicant was employed in ORG of ORG of ORG . From DATE to DATE she was a policewoman in the GPE - ORG and then in LOC . She worked in ORG and ORG . The applicant retired on DATE .

On DATE the Director of ORG , pursuant to section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and on the basis of information received from the ORG , issued a decision on the re - assessment of the applicant ’s pension , whereby her benefit was reduced from ORG CARDINAL to ORG CARDINAL,CARDINAL.CARDINAL DATE . That meant that instead of receiving as before PERCENT of her pension ’s basis of assessment , she received PERCENT of that amount .

On DATE the applicant appealed to ORG . The court dismissed her appeal on DATE . The applicant lodged an appeal against the judgment . On DATE ORG rejected the appeal .

On DATE the applicant lodged a cassation appeal ( skarga kasacyjna ) . ORG rejected it as inadmissible on DATE . The applicant ’s further interlocutory appeal ( zażalenie ) against that decision was dismissed by ORG on DATE .

The applicant is a NORP national , born in DATE and living in ORG . In the proceedings before the ORG he was represented by Mr T. GPE , a lawyer practising in PERSON .

From DATE to CARDINAL DATE the applicant was a functionary of ORG and , after having been positively vetted in DATE , of ORG . He began his career from a clerk in the field of operational techniques ( referent techniki operacyjnej ) in ORG and , until DATE , he held various posts in units of ORG “ B ” and ORG “ T ” of ORG ( see also paragraph CARDINAL above ) . In DATE the applicant participated in a special course for ORG . In DATE he followed extramural studies at ORG ( Wyższa PERSON ) , an academy which trained officers for ORG .

On DATE the applicant retired and was granted the right to an old - age pension corresponding to PERCENT of its basis of assessment .

On DATE the Director of ORG , pursuant to section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and on the basis of information received from the ORG , issued a decision on the re - assessment of the applicant ’s pension , whereby his benefit was reduced from ORG CARDINAL,CARDINAL.CARDINAL gross to ORG CARDINAL,CARDINAL.CARDINAL gross DATE .

In a subsequent decision , issued on DATE , the applicant ’s pension was assessed at ORG MONEY gross and ORG CARDINAL,CARDINAL.CARDINAL net .

The applicant appealed against both decisions to ORG . He argued , among other things , that they were in breach of the constitutional principles of nondiscrimination , protection of acquired rights and presumption of innocence , and also incompatible with Articles CARDINAL and CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL to the Convention .

The court , noting that from DATE to CARDINAL DATE the applicant had been a functionary of ORG , which justified the application of LAW , and having regard to ORG judgment of DATE ( see paragraphs CARDINAL - CARDINAL below ) , rejected the appeal on DATE . The judgment , following the applicant ’s further appeal , was upheld by ORG on DATE . The court stressed that the amount of the applicant ’s benefit – even after the reduction – remained higher that the average old - age pension under the general social security scheme .

The applicant is a NORP national born in DATE and living in GPE . In the proceedings before the ORG he was represented by PERSON , a lawyer practising in ORG .

The applicant was a functionary of ORG from DATE to DATE . On the latter date he retired .

On DATE the Director of ORG , pursuant to section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and on the basis of information received from the ORG , issued a decision on the re - assessment of the applicant ’s pension , whereby his benefit was reduced from ORG CARDINAL,CARDINAL.CARDINAL to PLN CARDINAL,CARDINAL.CARDINAL DATE .

The applicant appealed to ORG , arguing that the provisions of the DATE Act on which the impugned decision was based were unconstitutional . In particular , he alleged a breach of the principles of the protection of acquired rights , the separation and balance of powers , proportionality , equality before the law and non - discrimination .

On DATE ORG , relying on ORG judgment of DATE , dismissed the appeal . The applicant appealed .

On DATE ORG heard the appeal and partly amended the first - instance judgment , holding that in respect of the period from DATE to CARDINAL DATE , during which the applicant had studied at ORG , the relevant coefficient for the pension ’s basis of assessment should be PERCENT , not PERCENT .

The applicant has not informed ORG current , increased amount of his old - age pension .

The applicant is a NORP national , born in DATE and living in GPE . In the proceedings before ORG the applicant was represented by PERSON , a lawyer practising in GPE .

The applicant was a functionary of ORG from DATE to DATE .

On DATE ORG gave a positive opinion on the applicant ’s suitability for re - employment in the new state security institutions ( see also paragraph CARDINAL above and paragraphs CARDINAL below ) . She continued service in ORG until DATE , when she retired .

On DATE the Director of ORG , pursuant to section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and on the basis of information received from the ORG , issued a decision on the re - assessment of the applicant ’s pension , whereby her benefit was reduced from ORG CARDINAL to ORG DATE .

On DATE the applicant appealed to ORG , maintaining that the provisions of the DATE Act on which the impugned decision was based were unconstitutional . In particular , she alleged a breach of the principles of the protection of acquired rights , the separation and balance of powers , proportionality , equality before the law and non - discrimination . She has not informed the Court of the outcome of the proceedings .

The applicant is a NORP national born in DATE and living in GPE . In the proceedings before the ORG he was represented by Ms B. ORG , a lawyer practising in GPE .

NORP The applicant was a functionary of ORG from DATE to an unspecified date in DATE . He held various posts , beginning his career as an operational inspector . On the termination of service he held the rank of lieutenant colonel . The applicant was granted the right to a disability pension on DATE . He did not undergo the vetting procedure .

On DATE and CARDINAL DATE the Director of ORG , pursuant to section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and on the basis of information received from the ORG , issued a decision on the re - assessment of the applicant ’s pension , whereby his benefit was reduced from ORG to ORG gross ( CARDINAL net ) DATE .

The applicant appealed against both decisions to ORG , arguing that the provisions of the DATE Act on which the impugned decision was based were unconstitutional . In particular , he alleged a breach of the principles of the protection of acquired rights , the separation and balance of powers , proportionality , equality before the law , non - discrimination and the right to social security . He submitted that LAW imposed collective punishment on former functionaries of ORG and that they were refused the right to a hearing and could not defend themselves against charges of a criminal nature laid against them in the preamble to that LAW . The applicant also invoked Articles CARDINAL and CARDINAL of LAW to the Convention .

On DATE ORG , relying on ORG judgment of DATE ( see paragraphs CARDINAL - CARDINAL below ) dismissed the appeal . The applicant appealed to ORG . He has not informed ORG outcome of the proceedings .

The applicant is a NORP national , born in DATE and living in GPE . In the proceedings before the ORG she was represented by PERSON PERSON , a lawyer practising in GPE .

The applicant was a functionary of ORG from DATE to CARDINAL DATE . She held various posts , starting her career as a typist in ORG of ORG . On the termination of her service , she was a senior clerk in the field of operational techniques . She retired on DATE .

On DATE the Director of ORG , pursuant to section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and on the basis of information received from the ORG , issued a decision on the re - assessment of the applicant ’s pension , whereby her benefit was reduced from PERCENT to PERCENT of the pension ’s basis of assessment . This corresponded to ORG CARDINAL DATE .

The applicant appealed to ORG , maintaining that the provisions of the DATE Act on which the impugned decision was based were unconstitutional and in breach of the Convention .

On DATE ORG , relying on ORG judgment of DATE ( see paragraphs CARDINAL - CARDINAL below ) , dismissed the appeal . The applicant ’s appeal against the judgment was heard , and rejected , by ORG on DATE .

The applicant is a NORP national born in DATE and living in GPE . In the proceedings before the ORG he was represented by Ms Z. GPE - Dek , a lawyer practising in GPE .

The applicant was a functionary of ORG from DATE to CARDINAL DATE and from DATE to CARDINAL DATE .

DATE . On DATE the Director of ORG , pursuant to section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and on the basis of information received from the ORG , issued a decision on the re - assessment of the applicant ’s pension , whereby his benefit was reduced from ORG CARDINAL,CARDINAL.CARDINAL to ORG DATE .

The applicant appealed to ORG , maintaining that the provisions of the DATE Act on which the impugned decision was based were unconstitutional , that that LAW itself was a form of political repression and revenge based on collective responsibility and that it was in breach of the LAW . He alleged , in particular , a violation of the constitutional principles of the protection of acquired rights , the separation and balance of powers , proportionality , equality before the law and non - discrimination and also invoked LAW and CARDINAL of the Convention .

On DATE ORG , relying on ORG judgment of DATE ( see paragraphs CARDINAL - CARDINAL below ) , dismissed the appeal . ORG rejected the applicant ’s appeal against the first - instance judgment on DATE .

The application was lodged by CARDINAL NORP nationals : PERSON ( “ the first applicant ) , born in DATE ; PERSON ( “ the second applicant ” ) , born in DATE , PERSON ( “ the third applicant ” ) , born in DATE ; PERSON ( “ the fourth applicant ” ) , born in DATE , PERSON ( “ the fifth applicant ” ) , born in DATE , Ms Ewa Kamińska ( “ the sixth applicant ” ) , born in DATE ; PERSON ( “ the seventh applicant ” ) born in DATE ; PERSON ( “ the CARDINAL applicant ” ) born in DATE ; Mr PERSON ( “ the ninth applicant ” ) , born in DATE ; Mr PERSON ( “ the tenth applicant ” ) born in DATE ; Mr PERSON ( “ the eleventh applicant ” ) born in DATE ; Mr PERSON ( “ the twelfth applicant ” ) , born in DATE ; PERSON ( “ the thirteenth applicant ” ) born in DATE ; PERSON ( “ the fourteenth applicant ” ) born in DATE and Ms PERSON ( “ the fifteenth applicant ” ) born in DATE . The applicants , except for the seventh and the twelfth applicants who reside in GPE , live in GPE . In the proceedings before the ORG they were represented by PERSON , a lawyer practising in GPE .

On DATE the Director of ORG , pursuant to section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act and on the basis of information received from the ORG , issued a decision on the re - assessment of the first applicant ’s pension , whereby her benefit was reduced from ORG CARDINAL,CARDINAL.CARDINAL ( net ) to ORG CARDINAL,CARDINAL.CARDINAL ( gross)/ PLN CARDINAL,CARDINAL.CARDINAL ( net ) DATE .

Similar decisions were issued in respect of the remaining applicants :

– on DATE the second applicant ’s benefit was reduced to ORG ( gross)/PLN CARDINAL,CARDINAL.CARDINAL ( net ) ; the pension ’s basis of assessment was reduced from PERCENT to PERCENT . Pursuant to an indexation decision of DATE , the applicant ’s pension was fixed at ORG ( net ) . The applicant has failed to specify the amount before the decrease but an indexation decision of CARDINAL DATE , which she produced , stated that her pension was fixed at ORG MONEY ( net ) .

– on DATE the third applicant ’s benefit was reduced to ORG CARDINAL,CARDINAL.CARDINAL ( net ) ; she has failed to specify the amount before the decrease . On DATE her old - age pension was lowered to ORG CARDINAL,CARDINAL.CARDINAL ( net ) due to the fact that she was in paid employment , which justified a statutory reduction of her social security benefits ;

– on DATE the fourth applicant ’s benefit was reduced from ORG MONEY ( net ) to ORG gross)/PLN CARDINAL ( net ) ;

– on DATE the fifth applicant ’s benefit was reduced to ORG CARDINAL ( gross)/PLN CARDINAL ( net ) . The applicant has failed to specify the amount before the decrease ;

– on DATE the sixth applicant ’s benefit was reduced from DATE ( gross ) to ORG CARDINAL,CARDINAL.CARDINAL ( gross ) ; the pension ’s basis of assessment was reduced from PERCENT to PERCENT ;

– on DATE the seventh applicant ’s benefit was reduced from ORG CARDINAL,CARDINAL.CARDINAL(gross ) to ORG ( gross ) ;

– on DATE the eighth applicant ’s benefit was reduced to ORG MONEY ( gross ) ; according to the applicant , his pension ’s basis of assessment was reduced from PERCENT to PERCENT . He has not specified clearly the amount before the decrease but an indexation decision of CARDINAL DATE , which he submitted , stated that the net amount of his pension was fixed at ORG ( net ) in DATE . In his case , the social security authority issued CARDINAL decisions : the first of DATE ( described above ) , the second of DATE specifying the gross ( PLN MONEY ) and net ( PLN MONEY ) amounts of his pension and the third ( indexation decision ) of CARDINAL DATE fixing his pension at ORG ( net ) ;

– on DATE the ninth applicant ’s benefit was reduced from PLN CARDINAL,CARDINAL.CARDINAL ( net ) to ORG MONEY ( gross)/PLN CARDINAL ( net ) ;

– on DATE the tenth applicant ’s benefit was reduced from ORG CARDINAL,CARDINAL.CARDINAL(gross ) to PLN CARDINAL,CARDINAL.CARDINAL ( gross ) ;

– on DATE the eleventh applicant ’s benefit was reduced to ORG CARDINAL,CARDINAL.CARDINAL ( gross ) . The applicant has failed to state clearly the amount before the decrease but an indexation decision of DATE , which he submitted , indicated that for DATE his pension was increased to ORG MONEY ( gross)/PLN CARDINAL ( net ) . Subsequently , by an indexation decision of CARDINAL DATE , the applicant ’s gross pension of ORG CARDINAL,CARDINAL.CARDINAL was reduced by ORG CARDINAL,CARDINAL.CARDINAL due to the fact that he was in paid employment , which justified a statutory reduction of his old - age benefits . In consequence , the applicant ’s pension was fixed at ORG ( net ) for DATE .

– on DATE the twelfth applicant ’s benefit was reduced from ORG MONEY ( net ) to PLN MONEY ( gross)/PLN CARDINAL ( net ) ;

– on DATE the thirteenth applicant ’s benefit was reduced to LAW ; the pension ’s basis of assessment was reduced from PERCENT to PERCENT . The applicant has failed to state clearly the amount before the decrease but an indexation decision of CARDINAL DATE , which she submitted , indicated that her pension was fixed at ORG gross)/PLN DATE ( net ) for DATE ;

– on DATE the fourteenth applicant ’s benefit was reduced to ORG ( gross)/PLN CARDINAL ( net ) ; the pension ’s basis of assessment was reduced from PERCENT to PERCENT . The applicant has failed to state clearly the amount before the decrease ;

– on DATE the fifteenth applicant ’s benefit was reduced from ORG ( gross)/PLN CARDINAL net ) to PLN CARDINAL ( gross)/ PLN MONEY ( net ) .

The applicants , on various dates , appealed to ORG , submitting in essence that the social security authority had misinterpreted the provisions of the DATE Act and that the impugned decisions were unlawful and contrary to the LAW and international treaties ratified by GPE . In particular , they relied on Articles CARDINAL , CARDINAL , DATE , DATE and CARDINAL of the LAW , asserting that the legislature had overstepped its competence because it had imposed collective punishment on them , that it had failed to respect the principle of protection of acquired rights and that they were discriminated against on account of their service with the ORG security authorities . They also invoked Articles DATE CARDINAL , CARDINAL and CARDINAL of the Convention and LAW No . CARDINAL to the Convention .

The applicants have not informed the ORG about the outcome of the appeal proceedings .

In the remaining CARDINAL cases the applicants , on various dates DATE , received similar decisions reducing their pensions with effect from DATE issued by the Director of ORG . As in the cases described above , those decisions were based on section CARDINALb read in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW and information on their employment in the ORG security authorities received from the ORG .

Most applicants contested DATE unsuccessfully DATE the decisions before ORG . The court , rejecting their appeals , relied on the same grounds as those cited above . Subsequently , the vast majority of the applicants lodged appeals with ORG . The appeals , except for a few cases where certain parts of the first - instance judgments relating to technical points or mistakes in the calculations were amended , were dismissed ( see also paragraphs CARDINAL , DATE , DATE , DATE , DATE and DATE above ) . Certain applicants have failed to inform ORG outcome of the appeal proceedings and , as it emerges from the material in the ORG ’s possession , some cases are still pending before the domestic courts .

The CARDINAL Act entered into force on DATE . It was repealed on DATE and replaced by the law of CARDINAL DATE on ORG and ORG ( ustawa o PERSON oraz PERSON ) .

Section CARDINAL(CARDINAL ) of the DATE Act read :

“ The Security Service shall be dissolved once ORG has been set up . ”

Section CARDINAL read :

“ CARDINAL . Once ORG has been set up , functionaries of the Security Service shall be dismissed from the service by virtue of law .

The [ preceding ] provision shall also apply to functionaries of ORG ( LOC ) who were functionaries of ORG on DATE . ”

Pursuant to section CARDINAL § CARDINAL , the ORG was to determine , within DATE following the DATE Act ’s entry into force , the procedure and conditions for admission to service and re - employment of former functionaries of ORG . On DATE the ORG issued LAW on the procedure and conditions for admitting functionaries of ORG to service in ORG and other organisational units under the Minister of the ORG , and on their employment in ORG ( uchwała w sprawie trybu i warunków przyjmowania byłych funkcjonariuszy PERSON do służby w PERSON i w innych jednostkach organizacyjnych podległych PERSON zatrudniania ich w PERSON – “ the DATE Resolution ” ) .

Under section CARDINAL of the CARDINAL Act , functionaries of the former ORG and ORG who were admitted to service or re - employed in organisational units under the Minister of the ORG preserved continuity of their service or employment .

The DATE Resolution ( which was repealed on DATE ) set up ORG ( PERSON do PERSON ) and regional vetting commissions ( wojewódzkie komisje kwalifikacyjne ) . Pursuant to paragraphs CARDINAL and DATE , the regional vetting commissions instituted a procedure on an application from a former functionary and gave opinions on candidates . ORG Central Personnel was responsible for the supervision of the process , handling appeals against the regional ORG opinions and reporting on the conduct of vetting proceedings to the ORG .

Pursuant to paragraph CARDINAL , a regional vetting commission evaluated the usefulness of a candidate for service on the basis of his application , personal files , records of service and other documents supplied . It could also , of its own motion or at the candidate ’s request , conduct an interview .

Paragraph CARDINAL.CARDINAL of the DATE Resolution read as follows :

“ A regional vetting commission shall give a positive opinion on a candidate if it is satisfied that he meets the requirements for a functionary of a given service or for an employee of ORG specified by law and if it is convinced that he has moral standing ( kwalifikacje moralne ) to perform service , in particular :

CARDINAL ) NORP in the course of his service he has not infringed the law ;

CARDINAL ) NORP he has performed his duties in a manner not infringing the rights and dignity of other persons ;

CARDINAL ) NORP he has not used his function for unofficial purposes . ”

Section CARDINAL of the CARDINAL Act in the version applicable until DATE , before the entry into force of the DATE Act ( see paragraph CARDINAL above ) , read as follows :

“ CARDINAL . The following types of service shall be treated as equivalent to service in the police , ORG , ORG , ORG or ORG :

CARDINAL ) NORP service performed as a functionary of the national police , the State security service , public order and national security authorities , other than service referred to in subsection CARDINAL ;

CARDINAL ) NORP military service relevant for the determination of the right to a military pension ;

CARDINAL ) NORP service performed as a functionary of ORG ( NORP PERSON ) if [ the person concerned ] was transferred directly to service in ORG or ORG before DATE ;

CARDINAL ) NORP employment or service in professional units for fire protection and education in firefighter schools , as a member of ORG , or as a functionary of ORG before DATE .

Subsection CARDINAL shall not apply to service performed DATE as a functionary of the ORG security service , public order and national security authorities if , in the course of performing his duties , a functionary committed an offence against justice or [ offence ] infringing the personal rights of a citizen and , in consequence , was dismissed from service in disciplinary proceedings or if criminal proceedings against him were discontinued in view of the minimal degree of social danger of his act , or if he was convicted for an intentional offence by a final judgment of a court . ”

Section CARDINAL(CARDINAL ) of the CARDINAL Act , in the version applicable until DATE , read , in so far as relevant :

“ The retirement pension of a functionary who remained in service before DATE shall amount to PERCENT of its basis of assessment for DATE of service and shall be increased by :

CARDINAL ) PERCENT of the basis of assessment – for each subsequent year of service ;

CARDINAL ) NORP PERCENT of the basis of assessment – for DATE of contributory periods preceding service but not for DATE from those contributory periods ;

CARDINAL ) PERCENT of the basis of assessment – for DATE of contributory periods over and above the DATE contributory period referred to in subsection CARDINAL ;

CARDINAL ) PERCENT of the basis of assessment – for each non - contributory year preceding service . ”

Under LAW and previous uniformed services pension laws a professional soldier and a functionary of a uniformed service were entitled to a retirement pension after DATE of service . Accordingly , a condition for the acquisition of pension rights was the requisite period of service , not the reaching of a certain age . The right to a retirement pension under the uniformed services pension scheme as applicable in the past and currently was not linked with the requirement to pay contributions by the person concerned since those pensions were financed from ORG funds .

The preamble to LAW reads as follows :

“ We hereby recognise that employment or service in the security authorities of the NORP state , or assistance provided to those authorities by an informer , consisting in combating democratic opposition , trade unions , associations , churches and religious organisations , violations of the right to freedom of expression and assembly , the right to life , liberty , property and security of citizens , was inextricably linked with violations of human and civil rights committed in the name of the NORP totalitarian regime .

Having regard to the foregoing and the need to ensure that functions , posts and professions requiring public confidence are held by persons whose conduct shows , and has showed in the past , their honesty , nobility , a sense of responsibility for their words and acts , civil courage and integrity ; also having regard to the constitutional guarantees securing to citizens the right to information on persons who have held such positions , have enacted as follows ... ”

The relevant parts of LAW read as follows :

“ CARDINAL . State security .... authorities , within the meaning of this Act , shall be :

CARDINAL ) ORG of ORG ;

CARDINAL ) the Ministry of Public Security ;

CARDINAL ) ORG ;

CARDINAL ) NORP organisational units subordinate to the authorities mentioned in points CARDINAL , in particular the units of ORG in the period up to DATE ;

CARDINAL ) NORP central bodies of ORG of ORG and their subordinate local units in the regional , district , and equivalent ORG headquarters , as well as in the regional , district , and equivalent offices for internal affairs ;

CARDINAL ) ORG ;

CARDINAL ) the Reconnaissance Unit of ORG ;

CARDINAL) ORG of the military units of ORG and their subordinate sections ;

CARDINAL ) the Military Information Corps ;

CARDINAL ) ORG ;

CARDINAL ) Directorate II of the General Staff of the Polish ORG ;

CARDINAL ) NORP other services of ORG providing operational intelligence or conducting investigative activities , including those within various armed services and branches and within military districts .

Within the meaning of this LAW the ORG security service units shall be those units of ORG which were dissolved by virtue of law upon the reorganisation of ORG , as well as their predecessors . ”

DATE . The DATE Act opens with a preamble , the relevant parts of which read as follows :

“ Recognising that the system of communist power was mainly based on a widespread network of ORG security authorities , which essentially performed the function of a political police , applying unlawful methods and infringing fundamental human rights ,

noting that crimes were committed against organisations and persons defending independence and democracy and , at the same time , [ their ] perpetrators were exempted from responsibility and escaped justice ,

seeing that functionaries of the ORG security service performed their duties without risking their health or life , taking advantage of various economic and legal privileges in exchange for the preservation of the inhuman regime ,

rewarding the conduct of those functionaries and citizens who , taking a huge risk , took the side of freedom and the injured citizens ,

being guided by the principle of social justice which does not permit toleration and reward of lawlessness ,

have enacted as follows ... ”

Section CARDINAL of the CARDINAL Act introduced a number of amendments to section CARDINAL of LAW ( see paragraph CARDINAL above ) .

Point CARDINAL ) in subsection ( CARDINAL ) was rephrased as follows :

“ Periods of service as a functionary of ORG ” .

New points CARDINAL ) and CARDINAL ) were also added to subsection ( CARDINAL ) :

“ CARDINAL . Periods of service as a functionary of ORG , except for service referred to in subsection CARDINAL .

Periods of service as a functionary of the ORG security service referred to in LAW ] in accordance with the principles mentioned in section CARDINAL , except for service described in subsection CARDINAL . ”

Section CARDINAL added a new section CARDINALa to the CARDINAL Act . This provision , in so far as relevant , reads as follows :

“ CARDINAL . On a request from the relevant pension authority , [ the ORG ] shall prepare on the basis of personal files in its possession information on the course of service of named functionaries of the ORG security service referred to in LAW [ LAW ] and shall transmit it to that authority within DATE of receipt of the request .

Information on the course of service referred to in subsection CARDINAL shall contain ;

CARDINAL ) NORP the functionary ’s personal data ...

CARDINAL ) NORP an indication of the periods of service in the State security service referred to in LAW [ LAW ] ,

CARDINAL ) NORP information whether documents in [ the ORG ] archives show that during that period the functionary , without his ORG knowledge , cooperated and actively supported persons or organisations acting for the NORP ORG ’s independence . ”

New section DATE was also added . It reads as follows :

“ CARDINAL . For a person who served in the ORG security authorities referred to in LAW [ LAW ] and who was in service before DATE , his pension shall amount to :

CARDINAL ) PERCENT of its basis of assessment – for DATE of service in the ORG security authorities DATE ;

CARDINAL ) NORP PERCENT of its basis of assessment – for DATE of service or periods equivalent to service referred to in LAW ( CARDINAL ) ( CARDINAL - CARDINALa ) and ( DATE ) .

Sections DATE and CARDINAL shall apply accordingly .

At a [ functionary ’s ] request , the full period of service in the ORG security service can be added to the periods referred to in section PERSON ) if he can show that before DATE , without his ORG knowledge , he cooperated with and actively supported persons or organisations acting for the NORP ORG ’s independence .

NORP In the situation mentioned in subsection CARDINAL , evidence can comprise information described in LAW a ( CARDINAL ) and , equally , other kinds of proof , in particular a criminal conviction , even if not final , in connection with an activity , [ undertaken ] without his ORG knowledge and consisting of cooperating with and actively supporting persons or organisations acting for the NORP ORG ’s independence when serving in the ORG security service DATE . ”

The relevant part of section CARDINAL of the DATE Act reads as follows :

“ CARDINAL . For persons in respect of whom information referred to in section CARDINALa ... shows that DATE they worked in the ORG security service referred to in LAW [ LAW ] and who on the date of entry into force of this LAW receive benefits accorded under [ LAW ] , the relevant pension authority ... shall of its own motion institute proceedings for the determination of the right to benefits and their amounts . [ An ] appeal to a court against a decision of the pension authority shall not stop the enforcement of that decision .

Payment of benefits determined in accordance with subsection ... ( CARDINAL ) shall be made with effect from DATE . ”

The rules for the determination of retirement pensions under the general social security scheme are laid down in the law of CARDINAL DATE on pension benefits from ORG ( ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych ) .

The general system operates on the basis of CARDINAL schemes , known as “ the old scheme ” and “ the new scheme ” .

NORP Under the old scheme , which applies essentially only to persons born before DATE , the right to a retirement pension is generally acquired by women aged DATE with at least a DATE contributory and/or non - contributory period and men aged DATE with CARDINAL contributory and/or non - contributory period . A retirement pension amounts to PERCENT of the so - called “ base amount ” ( kwota bazowa ) ( i.e. PERCENT of the average salary in GPE in DATE , reduced by compulsory social insurance contributions deducted from the salary ) + PERCENT of the basis of assessment for DATE + PERCENT of the basis of assessment for each non - contributory year . The basis of assessment is , to simplify the rules , calculated with reference to the average salary ( reduced by social insurance contributions ) received by the person concerned in DATE selected from DATE of employment or DATE chosen by the person concerned .

The new scheme is composed of the so called “ CARDINAL pillars ” ( trzy filary ) .

The first pillar is managed by ORG , which is a public institution and the second and the third pillars are managed by private institutions . The third pillar manages supplementary , private pension plans based on voluntary contributions and is not relevant to the present cases .

In the first and second pillars social insurance contributions are compulsory and the scheme applies to persons born after DATE . The right to a retirement pension is acquired by persons who have reached the statutory retirement age ( from DATE for women and from DATE and DATE for men ) . The amount of a retirement pension is the equivalent of the total amount of pension contributions after indexation collected since DATE and what is known as “ initial capital ” ( contributions collected before DATE ) after indexation , divided by the average life expectancy expressed in DATE for a person whose age is the same as the retirement age of the person concerned .

DATE . According to an official communiqué on the minimum statutory pension , issued by the President of ORG on DATE ( published in ORG ) of DATE no . CARDINAL , item CARDINAL ) , in DATE the minimum statutory pension was fixed at MONEY ( PLN ) .

DATE LAW states :

“ GPE shall be a democratic state ruled by law and implementing the principles of social justice . ”

LAW states :

“ CARDINAL . The system of government of GPE shall be based on the separation of and balance between the legislative , executive and judicial powers .

Legislative power shall be vested in the PERSON and the ORG , executive power shall be vested in the President of GPE and ORG , and judicial power shall be vested in courts and tribunals . ”

DATE LAW states :

“ Marriage , being a union of a man and a woman , as well as the family , motherhood and parenthood , shall be placed under the protection and care of GPE . ”

DATE LAW states :

“ The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens . It shall be inviolable . The respect and protection thereof shall be the obligation of public authorities . ”

Article CARDINAL of the LAW states :

“ Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic state for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”

Article CARDINAL of the LAW states :

“ CARDINAL . All persons shall be equal before the law . All persons shall have the right to equal treatment by public authorities .

No one shall be discriminated against in political , social or economic life for any reason whatsoever .

Article CARDINAL of the LAW states :

“ CARDINAL . Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof , and which is subject to a penalty , shall be held criminally responsible . This principle shall not prevent punishment of any act which , at the moment of its commission , constituted an offence within the meaning of international law .

Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings . He may , in particular , choose counsel or avail himself - in accordance with principles specified by statute - of counsel appointed by the court .

Everyone shall be presumed innocent of a charge until his guilt is determined by the final judgment of a court .

Article CARDINAL § CARDINAL of the LAW states :

“ A citizen shall have the right to social security whenever incapacitated for work by reason of sickness or disability as well as having attained retirement age . The scope and forms of social security shall be specified by statute . ”

On DATE a group of members of ORG belonging mostly to ORG ( Sojusz Lewicy Demokratycznej ) asked ORG ( PERSON ) to declare that LAW was in its entirety incompatible with LAW , DATE , QUANTITY and CARDINAL of the LAW . Subsequently , in their pleading of CARDINAL DATE , they also relied on Articles CARDINAL , CARDINAL , DATE , DATE and CARDINAL § CARDINAL of the LAW .

The main thrust of the very extensive arguments submitted in support of the application , which were made both in writing and at an oral hearing can be summarised as follows .

CARDINAL ) The CARDINAL Act , drastically reducing the pensions of former functionaries , had deprived some of them of the possibility of living with dignity and consequently was contrary to the principle of respect for human dignity laid down in LAW . At the same time , it infringed the very essence of the right to social security set forth in LAW .

CARDINAL ) All the functionaries of the ORG security service who had been reemployed after DATE had undergone a vetting procedure under the DATE Resolution and had been considered fit for service in GPE . They had obtained their pension rights lawfully under LAW , a law enacted by independent , democratic GPE . The DATE Act extinguished their rights acquired under a democratic system in an arbitrary fashion and unjustifiably , in breach of the principle of the protection of acquired rights laid down in LAW .

CARDINAL ) Vetting and re - employing former functionaries of the ORG security service constituted a special declaration , made on behalf of GPE by the ORG authorities , that they would be treated on an equal basis with all functionaries of services created after DATE . In turn , the functionaries , under oath , took upon themselves an obligation to serve the nation faithfully and protect the legal order established by LAW , and the security of the ORG and its citizens . They fulfilled their duties ; otherwise , they would not have been granted their pensions .

The CARDINAL Act , enacted DATE , amounted to a breach of this special pact and , consequently , violated the principle of the ORG confidence in the ORG and the laws made by it laid down in LAW .

CARDINAL ) The DATE Act was based on the rule of collective responsibility and presumption of guilt on the part of former functionaries of the State security service . It applied an automatic restriction of pension rights of all former State security service functionaries , notwithstanding their actual individual conduct and the nature of the duties they had performed in DATE . As a result , the CARDINAL Act , drastically lowering the coefficient used for the determination of their pensions , constituted a form of unjustified repression against positively vetted and re - employed functionaries .

This was tantamount to considering service before DATE a noncontributory period . In particular , the legislature did not put functionaries on an equal footing with other persons receiving pensions under the general social security scheme , where a coefficient of PERCENT applies , which could give the deceptive appearance of a “ withdrawal of privileges ” , but placed them in a decisively more disadvantageous position . This constituted a breach of the principle of social justice laid down in LAW .

CARDINAL ) The legislature also violated the principle of separation and balance of powers laid down in LAW . It imposed collective punishment on all persons who had been functionaries of the ORG security service before DATE . The mere fact of service in those authorities was decisive . No legal procedure was available to review the legality , justification , adequacy and proportionality of the sanction imposed . For all practical purposes , the legislature took over the role of the courts of law . In consequence , functionaries were punished collectively , regardless of whether they had indeed been responsible for any acts which were unlawful , infringed human dignity or were morally reprehensible .

CARDINAL ) The DATE Act was in breach of the principle of proportionality laid down in LAW because it constituted an extremely serious restriction on the pension rights of positively vetted and re - employed functionaries and imposed an excessive burden on them . Moreover , LAW entirely disregarded ORG DATE ) on measures to dismantle the heritage of former communist totalitarian systems ( “ the DATE ORG ” ) and its accompanying guidelines , recommending that that process should be terminated within DATE of the fall of the communist dictatorship ( see also paragraph CARDINAL below ) .

CARDINAL ) The CARDINAL Act , contrary to the principles of equality before the law and non - discrimination laid down in LAW , introduced discrimination between functionaries who had been vetted positively and subsequently re - employed and functionaries who had not served in the ORG security authorities DATE . There was no basis for this difference in treatment as both groups had the same characteristics .

The deputies also stressed that the legislature had ignored the fact that functionaries of the ORG security service had performed various duties and that , in particular , many of them had been administrative personnel , had been teachers , secretaries , or drivers or they had dealt with common or economic crime and had not been involved in surveillance of or combat against the opposition . In their view , these persons should not be affected by LAW . It was profoundly unjust that a functionary who had worked all his professional life in the ORG security service in a lowly technical or administrative position , not infringing the rights of others , not combating the opposition and not acting for the preservation of the communist regime should now receive a pension of MONEY .

The other parties to the proceedings , namely the PERSON , represented by its Speaker ( PERSON ) and ORG , also submitted extensive arguments .

The Speaker of the PERSON asked ORG to dismiss the application , stressing , in particular , that the impugned reduction could not be regarded as disproportionate or excessive having regard to the lowest benefits available under the general social security scheme or those received by persons who had been subjected to political repression under the totalitarian system .

The Prosecutor General asked ORG to dismiss the application in part contesting the reductions in pensions , and to discontinue the proceedings in respect of the remainder .

ORG , sitting in a panel of CARDINAL judges , heard the application on CARDINAL and DATE and DATE . It gave judgment on the last of these dates , holding that the contested amendments to the DATE Act introduced by LAW were compatible with the LAW . CARDINAL judges voted against the ruling and submitted dissenting opinions ( see paragraphs CARDINAL - CARDINAL below ) . CARDINAL of the judges submitted a concurring opinion .

The judgment contains very extensive reasoning , which can be summarised as follows .

As regards the scope of the constitutional review in the case , ORG held that the application would eventually be examined under LAW , DATE , DATE , DATE , DATE and CARDINAL § CARDINAL read in conjunction with Article CARDINAL § CARDINAL of the LAW ( see also paragraphs CARDINAL above ) and , finding that the deputies had not advanced meritorious arguments concerning the other alleged breaches , discontinued the proceedings in that respect .

In an introductory part of the judgment ORG referred at length to various general issues , such as the NORP ORG ’s resolutions condemning the former communist regime and the decommunisation laws adopted by GPE . It also had regard to resolutions of ORG of ORG , in particular , the DATE ORG and ORG on the need for international condemnation of crimes of totalitarian communist regimes ( “ the PACE DATE Resolution ” ; see also paragraphs QUANTITY below ) , as well as to laws and measures affecting pension rights of functionaries of the former communist State security service in other countries ( in particular , in GPE , GPE , GPE and GPE ) . It referred to the ORG ’s case - law on lustration and de - communisation measures and its own jurisprudence on settling accounts with the communist past .

The Constitutional Court next referred to the essential features and activities of the communist ORG security service . This part of the reasoning reads , in so far as relevant , as follows :

“ CARDINAL . ... The State security authorities of the Polish People ’s Republic and their functionaries safeguarded the communist regime in GPE in DATE , they preserved the situation in which in GPE there was no liberty and democracy , no market economy and no affiliation with the NORP world . [ A ] direct consequence thereof was a degradation of the country ’s civilisation , which was demonstrated by , among other things , a deep disintegration of its economy and financial situation .

The [ communist ] system was founded on a secret political police apparatus which was extensive in terms of its structure and number [ of employees ] . The main objective of this apparatus was to preserve and support the communist regime . To this end , functionaries of the ORG security service of ORG in the initial period used terror and , routinely , humiliation , surveillance of innocent people , and fabrication of evidence ; they violated fundamental human rights and freedoms . The methods they used and the scale and intensity [ of their activities ] changed over time , but their essence was DATE to support a political regime which was hostile to human rights . In reward , the ruling communist party gave those functionaries practical impunity for abuses of power , promotions that were faster than in other uniformed services , a high remuneration for service , other numerous additional economic and social privileges , and high retirement pension benefits .

This court does not judge the individual motivations of MONEY of people who chose voluntarily to serve in the State security authorities of NORP People ’s Republic , mostly young men . It is likely that purely professional motivation ( service in the secret police ) was similar to that which exists DATE . A considerable difference lies in the object of the choice . In no case does the choice of service in the secret political police of the communist ORG merit approval , notwithstanding the organisational unit and the grade of the functionary ...

By DATE of the Polish People ’s Republic CARDINAL functionaries were employed by the ORG security authorities . DATE there are in total CARDINAL . This is not CARDINAL of the previous total . The security authorities of ORG , instead of serving to protect the political , social and economic aspirations of NORP , constituted a highly specialised net of institutions which worked against these aspirations . The “ product ” that remained after those security authorities had been disbanded is CARDINAL kilometres of files , of which CARDINAL m are important for national security DATE and are in the restricted archives of the ORG ... ”

In respect of the deputies’ argument that the functionaries adversely affected by LAW had been either positively vetted or not subjected to the vetting procedure , ORG held , among other things , that :

“ CARDINAL.CARDINAL ... [ ORG a result of democratic transformation in GPE ORG was ... dissolved . The ... sovereign NORP State needed new services , which would ensure its security and would at the same time act in accordance with the standards of a democratic state ruled by law . There were CARDINAL possible options : CARDINAL ) constructing the new services from scratch , and recruiting exclusively persons who had not served in ORG , with the prospect of a long period of preparation for their tasks or CARDINAL ) setting up a new State protection police quickly , taking unavoidably large numbers of former functionaries of the dissolved ORG , the legislature chose the second option . It meant that former functionaries of ORG could be admitted to service in ORG .

The object of the vetting procedure was not to issue certificates of good moral standing to functionaries of particular departments of ORG ... ”

A considerable part of the reasoning was devoted to a comparison between pensions under the general social security scheme and the uniformed services system .

In respect of the calculation of pensions under the general rules , it was noted that the system was organised in such a way that an ordinary employee on his retirement received PERCENT of his salary calculated for a period of DATE chosen by him from DATE preceding his retirement , including contributory and non - contributory periods . The longer the period of employment , the higher the pension . In practice , in order to receive a pension CARDINAL the average salary in DATE , a person had to be employed for DATE .

In contrast , a functionary of the uniformed services acquired the right to a pension equal to PERCENT of his average salary after DATE of service . The average salary of persons insured under the general scheme was PERCENT that of the uniformed services personnel and this difference was even more marked in comparison to the special services . Accordingly , a pensioner insured in the general scheme received PERCENT of his average salary for DATE for a period of employment which was twice as long .

As regards the belated introduction of the new rules and nonconformity of the DATE Act with the DATE ORG , ORG observed , inter alia , the following :

“ ... The lapse of time since the NORP ORG gained sovereignty in DATE , although not without significance , can not be a decisive criterion for the evaluation of constitutionality of the regulations adopted by the legislature in order to settle accounts with the former functionaries of the communist regime . There is no provision in the LAW which would impose a prohibition on enacting such regulations . LAW does not set time - limits for the settling of accounts with the past communist regime . It is not within the competence of ORG to give an opinion on whether , and if so by when , the legislature of free GPE can introduce such laws ... How much time elapses between the collapse of the communist regime and the adoption of a given law depends on the existence of a configuration of power capable of enacting the law during its parliamentary term . As shown by the examples of GPE and other countries in our region of LOC , as well as certain countries in LOC , DATE may elapse after the establishment or reestablishment of democracy before laws are enacted regulating a certain aspect of responsibility for systemic abuses of power ...

Referring to the argument that LAW of DATE is in ‘ flagrant contradiction’ of the DATE ORG and of the guidelines to that document ... ORG finds that there is no suggestion in those documents that settling of accounts with the communist period should only take place during DATE after the overthrow of the dictatorship . Laws on settling accounts have been introduced in various [ countries ] and in DATE over DATE , including in DATE ... As ORG has noted above , pursuant to § DATE PACE Resolution : ‘ In exceptional cases , where the ruling elite of the former regime awarded itself pension rights higher than those of the ordinary population , these should be reduced to the ordinary level’ ”

As regards the argument that an interference with the functionaries’ right to social security was excessive , ORG noted that , in essence , the legislature reduced the coefficient of the pension ’s basis of assessment from PERCENT to PERCENT only in respect of functionaries of the ORG security service who were in service before DATE and who had been employed for DATE . Other elements relevant to the assessment of pensions remained unchanged , in particular the right to a pension after DATE of service , advantageous calculation of the pensions’ basis of assessment in comparison to the general system , rules and terms regarding indexation , invalidity and survivor pensions benefits , special allowances and increases in pensions due to , for instance , service during the war , combating terrorism , serving in hazardous conditions or in the counter - intelligence service .

In that context , ORG also cited various information supplied by the social security authorities , concerning levels of pensions of functionaries as determined under LAW in comparison to ordinary pensioners . In DATE the average pension of the former amounted to MONEY ( ORG ) , whereas the average pension received under the general social security scheme was LAW . At the material time the minimum statutory pension was ORG CARDINAL.CARDINAL .

In DATE the average pension received by former functionaries of the ORG security service was lowered by ORG and was still higher by PERCENT than the average pension under the general scheme . Only in respect of ordinary functionaries was the average pension ( ORG ) slightly lower than under the general scheme . Junior officers received PLN CARDINAL,CARDINAL.CARDINAL on average ( formerly ORG , senior officers ORG MONEY ( formerly ORG ) and generals received ORG ( formerly ORG ) .

According to information produced by the Director of ORG on DATE , the board issued CARDINAL decisions re - assessing pensions of former functionaries . In CARDINAL cases the pensions remained unchanged due to the fact that certain periods of employment , which had not previously been included , were taken into account . In CARDINAL cases the application of the PERCENT coefficient as established by LAW would have resulted in reducing pensions below the statutory minimum and , therefore , those pensions were increased so as to reach that amount .

In view of the foregoing , ORG held that the legislature , being guided by the principle of social justice , pursued the legitimate aim of adjusting the pensions of former functionaries of the ORG security service to the average level of pensions under the general social security scheme . In consequence , in DATE the average pension of a functionary was still higher that the average ordinary pension . This reduction limited , but did not extinguish , the excessive , unjustly acquired generous benefits of former state security functionaries . This demonstrated that the legislature was not seeking revenge but greater social justice .

Considering the above circumstances , ORG concluded that the impugned provisions were not incompatible with LAW read in conjunction with LAW of LAW . It held , inter alia , as follows :

“ CARDINAL . ORG finds that the legislature did not infringe the essence of the right to social security by introducing LAW . Although it considers that the reduction in retirement pensions of ... the functionaries of the ORG security service of ORG was significant , it nevertheless remained within the margin of appreciation determined by LAW . An infringement of [ their ] right to social security would , in particular , have occurred if the legislature had taken away all their retirement pension rights or reduced their pensions to a level below the social minimum standards . By reducing [ their ] retirement benefits the legislature not only guaranteed that their benefits would not be lower than the minimum statutory retirement pension under the general social security system ... but also ensured that the amount of [ their ] average retirement pension under the new provisions remains still significantly higher than the average retirement pension paid under the general social security system . ”

Rejecting the arguments as to the alleged incompatibility of section CARDINAL(CARDINAL ) and ( CARDINAL ) and section CARDINALb of LAW as introduced by LAW with LAW ( the principle of respect for human dignity ) , ORG held :

“ CARDINAL . The impugned provisions are neither aimed at depriving the functionaries of security authorities of the minimum means of subsistence , nor at humiliating them . [ The ] aim is to reduce their retirement pension benefits , which ... stem from the privileged system of social security . As ... already established above .... after the entry into force of LAW , the average reduced retirement pension of a functionary of the ORG security authorities ... is still PERCENT higher than the average retirement pension in the general retirement pension system , and CARDINAL times higher than the minimum statutory retirement pension . In this situation , the legislature under the impugned provisions still provides retired functionaries of the ORG security authorities .... with adequate , justified and fair social security benefits for the period of their service before DATE ... In conclusion , the contested provisions conform to LAW . ”

The Constitutional Court further rejected the arguments in respect of the alleged incompatibility of sections PERSON ) and ( CARDINAL ) and CARDINAL ) of the DATE Act as introduced by LAW with LAW ( the principle of ORG confidence in the state and the law made by it , the principle of protection of acquired rights and the principle of social justice ) . The relevant part of the reasoning reads as follows :

“ CARDINAL . ... The legislature was entitled DATE despite the lapse of DATE since the transformation of the system DATE to introduce provisions reducing retirement pensions for periods of service in the ORG security authorities ... It does not follow from the constitutional principle of protection of ORG confidence in the ORG and the laws made by it that everyone , regardless of his or her personal circumstances , may assume that the rules governing his social rights will never change to his disadvantage in the future ...

The protection of acquired rights does not mean that those rights are inviolable , and does not exclude the enactment of less advantageous regulations . ORG has stressed on many occasions that departure from the principle of protection of acquired rights is permissible , provided it has a basis in other constitutional principles , provisions or values .... According to the well - established jurisprudence of ORG , the principle of protection of acquired rights does not apply to rights acquired unjustly or dishonourably , nor to rights which lacked a basis in the constitutional order binding at the time of adjudication ...

By enacting the contested provisions the legislature expressed a negative opinion on the activities of ... the security authorities of ORG , which was confirmed in the course of legislative work and in the preamble to LAW . In the preamble , the legislature declared it had been guided by the ‘ principle of social justice , which does not permit the toleration and reward of ORG . ... As already stated above , the legislature of free GPE has never expressed a single positive opinion on the secret political police of DATE , and in DATE this opinion has been reflected in laws and adopted resolutions many times . As long as constitutional principles and values are respected , the legislature has the right to draw conclusions from the historical experience of the Polish People ’s Republic ...

The applicant seems to suggest that the impugned provisions would conform to the constitutional principle of social justice if the coefficient of the basis of assessment for the retirement pension was PERCENT ... which , in the applicant ’s opinion , might give a deceptive appearance of a “ withdrawal of privileges ” . The PERCENT , however ... placed those affected by it in a position where their pension was significantly lower than in the general retirement pension system , which , according to the applicant , amounts to repression ...

This argument is ill - founded ...

As this court has already found ... the ... PERCENT for DATE of service must be assessed taking into account the fact that functionaries of the ORG security authorities had been receiving remunerations significantly higher than the average salary in GPE .... The amount of the retirement benefit is not determined by the coefficient for the basis of assessment alone ( PERCENT , PERCENT or PERCENT ) , but is a result of the “ base amount ” and other factors , relevant to the establishment of the final amount of the whole benefit ...

This court has already established that , after the DATE Act ’s entry into force , the average reduced retirement pension of a functionary of the ORG security authorities ... is still PERCENT higher than the average retirement pension in the general old - age pension system , and CARDINAL times the statutory minimum retirement pension . ...

In sum , the privileges in respect of retirement pension rights [ of the functionaries ] have been acquired dishonourably . The aims and methods of ... the ORG security service of ORG can not be considered legitimate . This court finds that service in ORG institutions and authorities which systemically violated fundamental human rights and the rule of law may not justify claims that privileges acquired before DATE of the regime should be preserved in a democratic state ruled by law .

CARDINAL of the ways of rewarding [ the functionaries ] ... for service was , among many other things , providing them with retirement pension privileges . These privileges were preserved by their beneficiaries in free GPE , which was confirmed in LAW . In DATE , assessing negatively the ORG security authorities of ORG , the legislature was able to resort to the abolition or limitation of unjustly acquired retirement pension benefits . ... This court considers that the manner in which the legislature ... reduced unjustly acquired retirement privileges in DATE was balanced , restrained and proportional . ”

ORG . The argument that the impugned provisions were incompatible with LAW ( the principle of equality before the law and non - discrimination ) because all the functionaries were treated in the same way , despite the fact that most of them had been positively vetted , was likewise rejected . In that regard , ORG once again stressed that the positive outcome of the vetting procedure did not mean an approval of service in the former communist secret political police and it did not eradicate the fact that the functionaries concerned had served in that institution voluntarily . All the functionaries were treated in exactly the same way and they were partly deprived of their pension benefits on the same ground , which was the fact that they had served in an institution which had engaged in reprehensible activities over the relevant period . Their service after the cut - off date in DATE for democratic GPE was treated without discrimination since they acquired the same pension rights as the others , notwithstanding their past .

ORG found no breach of LAW ( the principle of division and balance of power ) in respect of the allegation that the legislature enacted LAW in order to impose a collective punishment on the former ORG security functionaries . It observed that ORG had not overstepped its competences set out in the LAW and that the contested provisions were not designed to punish the functionaries collectively but to reduce their pensions to the level of the average pension under the general social security scheme .

Lastly , as regards the argument that the contested provisions of the DATE Act were based on collective responsibility and presumption of guilt since all the functionaries of the ORG security service were equally considered criminals who did not deserve any rights , ORG found that LAW ( the principles of the right to defence , presumption of innocence , nulla poena sine lege ) did not apply in the case . It stressed that this provision concerned only criminal responsibility and criminal proceedings and could not be interpreted extensively . There were no criminal sanctions included in the impugned provisions . Nor did they prejudge criminal guilt of functionaries , and they did not constitute a form of repression .

NORP In Judge PERSON ’s view the DATE Act was in its entirety incompatible with LAW . In his dissenting opinion he stated , among other things , the following :

“ Changes in the retirement pension system are obviously permissible , and also in certain circumstances justly acquired rights can not be absolute . However , this needs to be done with respect for constitutional principles , and in particular those in LAW ...

The DATE Act is in breach of LAW , since the legislature has imposed collective punishment on all those who were functionaries of the ORG security authorities before DATE , without considering the conduct of individual functionaries . The decisive factor is the mere fact of serving in the ORG security authorities of ORG . In this way the legislature entered the realm of authority which is constitutionally restricted to judicial bodies , without taking any action to check or verify the legitimacy , adequacy , legality , fairness and proportionality of the sanction imposed . As a consequence the legislature , relying on the principle of collective responsibility , has imposed severe punishment , regardless of whether the functionaries are responsible for any unlawful acts which violated human dignity , or whether their actions were morally reprehensible ...

The judgment ... following the intentions of the legislature which have been expressed in the preamble , passes on political and moral judgment regarding the functioning of the ORG security authorities in the Polish GPE and draws from it legal consequences with regard to constitutional matters . However , I object to the methodology of adjudicating in the name of “ pure justice ” which has been assumed by ORG , which has been inspired by political and moral opinions but has omitted the constitutional principles reflecting contemporary long - standing standards of a democratic state ruled by law established in its jurisprudence .... ”

Judge PERSON considered that the LAW to the CARDINAL Act was incompatible with LAW , that sections CARDINAL and CARDINAL read in conjunction with LAW were incompatible with Articles CARDINAL and CARDINAL § CARDINAL read in conjunction with LAW of the LAW and disagreed with the majority with regard to certain general ideas expressed in the reasoning . The relevant parts of her opinion read as follows :

“ I do not question the constitutional admissibility ( and legitimacy ) of reducing retirement pensions for the staff who formed a kind of “ ORG ” of the totalitarian regime , subsequently discredited in the democratic system . I question the way in which it has been carried out . ...

The preamble to LAW first of all stigmatises the persons to whom the reduction of retirement pensions applies and , secondly , specifies the aims of the LAW . With regard to the former , it states that , as functionaries of ORG security authorities , they received pensioner status granted ‘ in exchange for the preservation of the inhumane regime’ in which , at the same time , ‘ the perpetrators were exempted from responsibility and escaped justice ” . These charges contain a strong emotional , moral and legal condemnation . When such a charge is made globally assertion of humiliation is thereby justified .

The mere fact of the above - mentioned stigmatisation of all persons to whom the DATE Act applies , constitutes , in my view , a breach of the principle of proper legislation ( LAW ) , as the scope ratione personae of the LAW is broader than the group of persons at whom the LAW is aimed , as indicated in the preamble , ( deprivation of privileges unjustly acquired during the period of the totalitarian regime ) . ...

I do not share the view expressed in the judgment that the positive vetting of the staff of ORG and ORG , carried out in DATE , is irrelevant to an assessment of the constitutionality of the CARDINAL Act . ...

It can not be assumed ( as it has been in the judgment ) that nobody guaranteed through the vetting the prospects of a retirement pension under the uniformed services system . The uniformed service brings with it not merely an obligation to perform work and the right to remuneration , but an entire legal status related to that service . The status also includes acquiring ( as a continuous process during the period of service ) retirement pension entitlements appropriate for uniformed services . That entitlement was granted to the positively vetted persons by allowing them to perform service in the democratic state ... . ”

Judge PERSON stated that the LAW to the CARDINAL Act was incompatible with ORG and CARDINAL of the LAW , that section CARDINAL taken together with section CARDINAL ) and ( CARDINAL ) and section CARDINAL taken together with section CARDINAL(CARDINAL ) and ( CARDINAL ) of the DATE Act were incompatible with Articles CARDINAL , CARDINAL , CARDINAL § CARDINAL and LAW read in conjunction with LAW of LAW . The relevant passages of his dissenting opinion read as follows :

“ ORG is a court of law , and not a court passing judgments on history . Respecting the principles of proper legislation is functionally linked with legal certainty and security , as well as with the protection of ORG confidence in the ORG and the laws made by it ... The principle of legal security requires that the legislature respects the existing legal relations . Introducing amendments during the legislative process which are not objectively justified and which divert the previous direction of the legislative process that was set by ... the DATE Act infringes the principle of a democratic state ruled by law ...

The principle of legality obliges the legislature to formulate laws to be enacted in accordance with the provisions of the LAW ... The challenged provisions of LAW are also inconsistent with the constitutional right to social security ( LAW read in conjunction with LAW of LAW ) , and the variation in the level of retirement pensions under the uniformed services system : CARDINAL ) due to the lack of connection between the distinction which has been introduced between pensioners from the uniformed services and the main aim of the statutes on retirement pensions , CARDINAL ) due to the lack of proportionality of the applied legal solutions and CARDINAL ) without any justification arising from a possible need for the protection of another , more important , constitutional value – must be regarded as inconsistent with Article CARDINAL § CARDINAL read in conjunction with LAW of LAW . .... ”

Judge PERSON stated that the preamble to LAW was incompatible with LAW , CARDINAL and DATE of the LAW and that section CARDINALb of LAW as introduced by LAW was incompatible with LAW in conjunction with Articles CARDINAL § CARDINAL and QUANTITY , as it infringed the principle of protection of acquired rights and that it was also incompatible with Articles DATE .

The dissenting opinion reads , in so far as relevant , as follows :

“ The first problem that arises in connection with the judgment concerns the significance of the passage of time for limitations on the legislature ’s activities . The DATE Act was enacted DATE after the change of the political and social system in GPE . ...

The citizens of GPE affected by LAW had all the reasons to assume that the rules which were binding for DATE would not be changed unless there were new circumstances justifying radical amendment of the legal provisions . ...

The legal fiction introduced by the legislature , namely applying the PERCENT coefficient to the basis of assessment for DATE of service in the ORG security authorities in DATE , which means that the legislature treats those affected as though they had not worked in that period , can not be regarded as consistent with the LAW . [ Under the general social security scheme ] the PERCENT coefficient applies to persons who have not paid pension contributions ... The functionaries employed in the ORG security authorities performed work ( service ) and the application of the fiction in DATE , changing the rules for the calculation of retirement pensions , must be justified in a particularly convincing way . The legislature did not delegalise work ( service ) [ in the ORG security authorities ] or [ those ] authorities , but only condemned them in the preamble to LAW ... The application of the PERCENT coefficient is not , by its nature , a revocation of a privilege , but a kind of individually addressed sanction . ...

The preamble to the DATE Act contains a statement which may be regarded as crucial for understanding the essence of the changes introduced to the rules for the calculation of retirement pension benefits . As the justification for the LAW , it is stated that ‘ crimes were committed against organisations and persons defending independence and democracy and , at the same time , the perpetrators were exempted from responsibility and escaped justice’ . ...

This is not a mere stigmatisation of particular individuals to whom the decisions specifying the new amount of retirement pensions were addressed , but is also about the use of rhetoric which at very least suggests that the adopted statutory solutions concerning retirement pensions are a form of punishment for undetected crimes against organisations and persons defending independence and democracy , and that those crimes were committed by perpetrators who escaped responsibility and justice ...

If behind the legislature ’s decision ... is an assumption that the addressees committed crimes and did not bear responsibility for their acts , then this means that the legislature qualifies certain acts . The point is that such qualification should be done by a criminal court , and not by the legislature . Whether a crime has been committed must be determined in the course of court proceedings , and not in the course of the legislative work . There is no doubt that the legislature has infringed Articles DATE of the LAW ... ”

Judge PERSON stated that the CARDINAL Act taken as a whole was unconstitutional and incompatible with all the provisions cited by the deputies . The relevant parts of his dissenting opinion read as follows :

“ The drastic reduction of retirement pensions vis - à - vis their level estimated under the rules previously and currently applicable under the uniformed services retirement pension system constitutes economic repression directed against specific recipients and , it should be stressed , their families . This repression is accompanied .... by penal stigmatisation of pensioners , in the form of describing their service in the Polish People ’s Republic as nothing but unlawful activities and continual commission of crimes violating fundamental human rights – all this in order to ‘ preserve the inhuman regime’ .

In the present case what happened is not a revocation of ‘ unjustly acquired privileges’ since ... retirement pensions paid under the uniformed services system are not privileges , and the rules for granting them have always been the same for everyone . The ostensible action conceals the real legislative aim , namely collective repression directed against the functionaries of the ORG security authorities of ORG ... by means of a drastic reduction ( DATE after the fall of the communist regime ) of the retirement pensions they have so far received . ...

Subjecting certain individuals to ex lege repression ( by drastically reducing the retirement pensions which they have so far received ) means that the legislative power has decided to substitute itself for the judiciary , although there is a constitutional requirement that guilt and punishment should be determined in court . This amounts to a breach of both the principle of separation of powers ( LAW ) and the constitutional right to a court .

Reducing ex lege pensions already being awarded ... without individual inquiry proceedings , and passing a condemnatory moral judgment with regard to a specific group of citizens , means assigning collective responsibility , which is inadmissible in a democratic state ruled by law ( compare Articles CARDINAL and CARDINAL of the LAW ) ...

[ The measure ] applied leaves no doubt that LAW has introduced inadmissible , extra - judicial and collective criminal responsibility in respect of persons regarded as former political opponents of the current parliamentary majority . ... ”

On DATE ORG dealt with a legal question submitted in the case of a certain GPE by ORG , asking whether the provision of section CARDINALb(CARDINAL ) of the CARDINAL LAW ( as amended by LAW ) that stated that LAW should apply accordingly meant that persons who had been functionaries of the ORG security service preserved the right to a retirement pension equal to PERCENT of its basis of assessment for DATE of employment .

ORG ruled that its response to the question would be as follows :

“ For DATE of service in [ the ORG security authorities ] DATE the pension should be PERCENT of its basis of assessment ( section DATE ( CARDINAL)(CARDINAL ) of the CARDINAL Act ) , which means that the amount of the pension calculated exclusively in respect of the period of such service may be PERCENT of the basis of assessment . ”

The relevant parts of the reasoning read as follows :

“ No ways or means of interpretation of reference to section CARDINAL of LAW contained in section CARDINALb(CARDINAL ) gives persons who have served in the [ State security authorities ] any legal possibility or arguments to assert the determination of their pensions on any other basis of assessment than PERCENT for DATE of service ... In contrast , the legal provisions under consideration are unambiguously plain , and therefore clear and not requiring any deeper legal analysis . However , having regard to a considerable number of persons who are concerned by ... reductions in pensions , this court has decided to resolve the submitted legal question ...

PERCENT of the basis of assessment for DATE of service as a minimum ... would lead to an inadmissible and unjustified negation of the [ CARDINAL Act ’s ] aim . Chronologically , as a matter of principle , service in DATE would correspond to the ‘ first’ ( initial ) DATE of service giving an entitlement to uniformed services’ pension rights . [ An ] interpretation that they would preserve PERCENT of the basis of assessment ... would exclude or at least considerably limit ... the rule that their pensions should be calculated with reference to the PERCENT coefficient of the basis of assessment for DATE of service in the ORG security authorities DATE ...

It should be firmly stressed that the aim of the provisions under consideration , added by [ the DATE Act ] , was not to deprive pensioners of the rights acquired due to service in the totalitarian State security authorities DATE . [ T]he legislature did not take away from them the right to take advantage of the uniformed services’ pension scheme , including for their periods of service in the ORG security authorities of ORG , but , in accordance with the constitutional principles of social justice and elementary ( ordinary ) decency , adjusted the levels of their benefits ... only in respect of periods of service which consisted in betraying the values of independence , freedom and democracy – to the level of benefits under the general social security scheme , without a further ( pro futuro ) possibility of taking advantage of the privileges unjustly or dishonourably acquired due to service in the totalitarian ORG security authorities DATE . Including this period in the ‘ pensionable service’ under the unformed services’ pension scheme and giving them PERCENT of the basis of assessment calculated in relation to the last , namely in principle the highest DATE salary in their last post , does not in any way discriminate against these persons . On the contrary , this is still a comparable , and even more advantageous [ solution ] than under the general social security scheme , having regard to the fact that [ a pension ’s basis of assessment under the general scheme ] is determined not with reference to the highest income in one ( DATE of employment but to the average basis for social security contributions for CARDINAL subsequent calendar DATE selected from DATE , or DATE selected from the entire contributory period ....

In that context , the impugned legislation does not constitute any breach of the common principle of equality or proportionality of benefits received under the pension scheme for uniformed services by persons who served in the security authorities of the totalitarian state , who engaged in unlawful and dishonourable acts or methods of political violence against compatriots – in comparison to benefits available under the general social security system .

It is worth noting that the provisions governing pension rights of victims of political repression by the ORG security service are still less advantageous [ Their ] periods of imprisonment on political grounds are included in the contributory periods but the relevant coefficient for a pension ’s basis of assessment is PERCENT because of their lack of income ... whereas those who subjected them to that repression are entitled to the PERCENT coefficient ...

Moreover , the PERCENT coefficient calculated with reference to the highest remuneration normally does not differ unfavourably from the PERCENT coefficient of the basis of assessment under the general social security scheme ... having regard to the fact that uniformed services pensions are calculated with reference to a higher ( PERCENT ) or at least equal ( PERCENT ) coefficients of the basis of assessment for periods before or after the termination of service ...

Admission to ... public service in the ORG security institutions of the democratic state governed by the rule of law restored in GPE after DATE does not constitute rehabilitation for the time of service in the security structures of the totalitarian state according to the standards of the democratic state ... which does not have the right or duty to maintain the privileges [ acquired ] on account of unlawful suppression of ORG inherent rights and freedoms by the ORG security service of the totalitarian state . ...

ORG unequivocally criticises and disqualifies any arguments for maintaining privileges acquired due to , or in connection with , participation in the system of enslavement and political repression by the ORG security service of the communist totalitarian state ... The privileges so acquired are not protected in a democratic system where there is domestic law , community law and international law , because persons who fight against fundamental human rights , rights of the nation and fundamental freedoms do not have the right or moral authority to assert that their pension privileges must be preserved in respect of the periods when the NORP nation ’s aspirations for independence , freedom and democracy were suppressed ... ”

On DATE PACE adopted Resolution DATE ) on measures to dismantle the heritage of former communist totalitarian systems . It reads , in so far as relevant :

“ CARDINAL . The heritage of former communist totalitarian systems is not an easy one to handle . On an institutional level this heritage includes ( FAC , the militarisation of civilian institutions , bureaucratisation , monopolisation , and overregulation ; on the level of society , it reaches from collectivism and conformism to blind obedience and other totalitarian thought patterns . To re - establish a civilised , liberal state under the rule of law on this basis is difficult - this is why the old structures and thought patterns have to be dismantled and overcome . ...

Thus a democratic state based on the rule of law must , in dismantling the heritage of former communist totalitarian systems , apply the procedural means of such a state . It can not apply any other means , since it would then be no better than the totalitarian regime which is to be dismantled . A democratic state based on the rule of law has sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished - it can not , and should not , however , cater to the desire for revenge instead of justice . It must instead respect human rights and fundamental freedoms , such as the right to due process and the right to be heard , and it must apply them even to those people who , when they were in power , did not apply them themselves . A state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat , since it has ample means at its disposal which do not conflict with human rights and the rule of law , and are based upon the use of both criminal justice and administrative measures .

The ORG recommends that member states dismantle the heritage of former communist totalitarian regimes by restructuring the old legal and institutional systems , a process which should be based on the principle(s ) of :

i. demilitarisation , to ensure that the militarisation of essentially civilian institutions , such as the existence of military prison administration or troops of ORG , which is typical of NORP totalitarian systems , comes to an end ;

ii . decentralisation , especially at local and regional levels and within state institutions ;

iii . demonopolisation and privatisation , which are central to the construction of some kind of a market economy and of a pluralist society ;

iv . debureaucratisation , which should reduce communist totalitarian over - regulation and transfer the power from the bureaucrats back to the citizens .

This process must include a transformation of mentalities ( a transformation of hearts and minds ) whose main goal should be to eliminate the fear of responsibility , and to eliminate as well the disrespect for diversity , extreme nationalism , intolerance , racism and xenophobia , which are part of the heritage of the old regimes . All of these should be replaced by democratic values such as tolerance , respect for diversity , subsidiarity and accountability for one ’s actions .

The ORG also recommends that criminal acts committed by individuals during the NORP totalitarian regime be prosecuted and punished under the standard criminal code . If the criminal code provides for a statute of limitations for some crimes , this can be extended , since it is only a procedural , not a substantive matter . Passing and applying retroactive criminal laws is , however , not permitted . On the other hand , the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law , but which was considered criminal according to the general principles of law recognised by civilised nations , is permitted . Moreover , where a person clearly acted in violation of human rights , the claim of having acted under orders excludes neither illegality nor individual guilt . ...

The ORG welcomes the opening of secret service files for public examination in some former NORP totalitarian countries . It advises all countries concerned to enable the persons affected to examine , upon their request , the files kept on them by the former secret services . ....

Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph CARDINAL , but who nevertheless held high positions in the former totalitarian communist regimes and supported them , the ORG notes that some states have found it necessary to introduce administrative measures , such as lustration or de - communisation laws . The aim of these measures is to exclude persons from exercising governmental power if they can not be trusted to exercise it in compliance with democratic principles , as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now .

The ORG stresses that , in general , these measures can be compatible with a democratic state under the rule of law if several criteria are met . Firstly , guilt , being individual , rather than collective , must be proven in each individual case - this emphasises the need for an individual , and not collective , application of lustration laws . Secondly , the right of defence , the presumption of innocence until proven guilty , and the right to appeal to a court of law must be guaranteed . Revenge may never be a goal of such measures , nor should political or social misuse of the resulting lustration process be allowed . The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy .

The ORG thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law , and focus on threats to fundamental human rights and the democratisation process .

Furthermore , the ORG recommends that employees discharged from their position on the basis of lustration laws should not in principle lose their previously accrued financial rights . In exceptional cases , where the ruling elite of the former regime awarded itself pension rights higher than those of the ordinary population , these should be reduced to the ordinary level . ... ”

On DATE PACE adopted Resolution CARDINAL ( DATE ) on the need for international condemnation of crimes of totalitarian communist regimes in which it referred , in particular , to its Resolution CARDINAL(CARDINAL ) , cited above ( see paragraph CARDINAL above ) . It read , in so far as relevant , as follows :

“ CARDINAL . NORP The totalitarian communist regimes which ruled in central and eastern LOC in DATE , and which are still in power in several countries in the world , have been , without exception , characterised by massive violations of human rights . The violations have differed depending on the culture , country and the historical period and have included individual and collective assassinations and executions , death in concentration camps , starvation , deportations , torture , slave labour and other forms of mass physical terror , persecution on ethnic or religious grounds , violation of freedom of conscience , thought and expression , of freedom of the press , and also lack of political pluralism . ...

The fall of totalitarian communist regimes in central and eastern LOC has not been followed in all cases by an international investigation of the crimes committed by them . Moreover , the authors of these crimes have not been brought to trial by the international community , as was the case with the horrible crimes committed by ORG ) .

Consequently , public awareness of crimes committed by totalitarian communist regimes is very poor . NORP parties are legal and active in some countries , even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past .

The ORG is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future . Furthermore , moral assessment and condemnation of crimes committed play an important role in the education of young generations . The clear position of the international community on the past may be a reference for their future actions . ...

Furthermore , [ the ORG ] calls on all communist or post - communist parties in its member states which have not yet done so to reassess the history of communism and their own past , clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity .

The ORG believes that this clear position of the international community will pave the way to further reconciliation . Furthermore , it will hopefully encourage historians throughout the world to continue their research aimed at the determination and objective verification of what took place . ”