DESUBECIATION

"Service for a totalitarian State" in the light of the "Desumption Act"

The Amending Act of 16 December 2016 introduced the second – after the Act of 23 January 2009. – regulation leading to a simplification in pensions for persons who served in the safety authorities of the PRL. The Act on the Amendment of the Act on Pension Supply of Police Officers, interior safety Agency, Intelligence Agency, Military Counterintelligence Service, Military Intelligence Service, Central Anti-corruption Office, Border Guard, Government Protection Office, State Fire Service and Prison Service and their families.

It reduced its pension benefits, assuming that for those who have performed "service to a totalitarian state‘and which remained in service before 2 January 1999, the pension shall be 0% of the assessment base — for each year ‘services for a totalitarian state’ and 2.6 of the assessment base for each year of service or periods equivalent to those referred to in points 1, 1a and 2-4 of Article 13(1) of the Amended Act.

As a consequence of the fresh provisions of the pension and pensions of erstwhile safety officers of the Polish People's Republic of Poland must not be higher than the average pension paid by ZUS: pension – PLN 2.1 1000 (gross), pension – PLN 1.6 thousand, household pension – PLN 1.8 thousand.

What is worth marking: according to statistics, the changes initially included nearly 35,000 people.

The tremendous effects of the amendment were tantamount to a number of explanation doubts that the Polish judiciary had to face. In fact, appeals have become common against the decision of the manager of the Insurance and Occupational Pensions Department of the Ministry of abroad Affairs – setting a new, reduced amount of benefits paid, which subsequently became the subject of legal proceedings in the recently created Section XIII of the Department of Labour and Social Insurance of the territory Court in Warsaw – dealing exclusively with specified cases.

One of the key concerns arising from the amendment under this article was to answer the question:

• Is the specified fact to reduce pension benefits to peculiar servants of PRL a adequate criterion "service to a totalitarian state (referred to in the amended law)‘?
• Or should the circumstantial actions of individual officers be assessed?

The answer was given by the ultimate Court, which decided by resolution of 16 September 2020 on the legal question of the court in Białystok. Importantly, this resolution was adopted in an extended, 7-member composition.

Analyzing the explanation doubts, the ultimate Court confirmed the full cognition of the Labour Courts and (property) social safety to make factual findings on the basis of any evidence available.

Thus Supreme Court disputed the explanation of the MIA Pension and Pension Facility indicating that adequate grounds for reducing the benefit was the information on the course of service (issued by IPN).

In the view of the ultimate Court, the explanation presented by the ZER of the Ministry of Justice is unacceptable and bringing the function of the judiciary solely to examine the correctness of the information provided by the IPN could deprive the appellant of the right to court.

In the view of the ultimate Court, the criterion of "services for a totalitarian state" should be assessed on the basis of all the circumstances of the case, including on the basis of individual acts and their verification for violations of fundamental rights and human freedoms.

The ultimate Court stressed that the Polish State is entitled to settle with the past, but the limits of specified settlements are defined by the standard of a democratic legal state. Quoting a passage of the preamble to the Constitution of Poland “(...) recalls the bitter experience of the time erstwhile the fundamental freedoms and human rights were in our The country is broken, wanting to warrant civilian rights forever, and the operation of public institutions to guarantee the integrity and efficiency of,(...)“The ultimate Court stressed that a democratic state of law cannot usage undemocratic methods of accounting with the past.

Thus, if a national safety officer committed a violation of human rights, he had to fight the democratic opposition with a simplification in the benefit. However, this should be judged by individual actions of a peculiar officer, not by formal affiliation, in the body, to certain organisational units of the Home Office.

However, it is worth mentioning that any courts have adopted a different explanation from the ultimate Court. The judgement of the Court of Appeal in Szczecin of 10 March 2022 (Signature III AUa 524/21) which states that the wording of the provisions of Article 15c in Article 13b of the Act is clear and that their lexical explanation clearly indicates, that the service to a totalitarian state was, in accordance with the legal definition set out in Article 13b(1), any service rendered between 22 July 1944 and 31 July 1990 in 1 of the institutions and formations mentioned in that provision. In another words, the specified fact of working in a given institution justified the determination that the individual was serving a totalitarian state – no substance what kind of function and how he performed his duties.

Irrespective of the interpretations separate from the ultimate Court, it should be stressed that they belong to minorities. The Association of Police Pensioners and Pensioners citing peculiar courts – points out that 7,000 pensioners have already won cases before the territory court. The Ministry of abroad Affairs usually appealed against these judgments. Over 3,000 people won cases after making an appeal and regained full retirement.

At this point, it should be mentioned that, according to the dominant case-law, it is for the pension body to show that the individual afraid has served for a totalitarian state. Where the appellant presents the course of service and the pension authority does not question him – The court should consider the facts not disputed as demonstrated. This was the judgement of the Bialystok Court of Appeal of 29 March 2022 (III AUa 1202/21).

It should be borne in head that cases pending before the court resulting from the entry into force of the amendment "Desubecation Act” – they benefit the budget.

Given the age of persons whose retirement has been reduced, the life expectancy statistic of the CSO and the time needed for the Courts to examine the case, it is highly likely that the persons afraid will not live to see the outcome.

AUTHORS:

Matthew Daniluk – lawyer Application

Piotr Włodawiec – Legal advisor

For questions, delight contact us.

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