October 03, 2011
By Ingrid Leijten.
Ingrid Leijten works as a Ph.D. fellow and teaching assistant at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law. Her research interest lies in the development of the ECHR and the practice of the ECtHR in relation to the Member States’ policymaking.
Stummer v. Austria deals with the affiliation of prisoners to an old-age pension system. After the application was declared admissible, jurisdiction was relinquished in favour of the Grand Chamber (Art. 30 ECHR). The case indeed raises serious questions affecting the interpretation of the Convention. The Grand Chamber’s response to these questions is interesting, and worth reflecting upon.
Ernst Stummer was born in 1938, and spent approximately 28 years of his life in prison. As a prisoner he worked in the prison kitchen and in the prison bakery, but was not affiliated to the Austrian old-age pension system in accordance with Austrian legislation. When his application for an early retirement pension was dismissed because Stummer had not accumulated the necessary 240 insurance months, Stummer argued that the number of months worked during his years in prison should be counted as well.
Stummer was not entirely left without social cover. Since 1994 prisoners in Austria had been affiliated to an unemployment scheme, and after his release in 2004 Stummer had received unemployment benefits, which were later replaced by emergency relief benefits. Nevertheless, the Grand Chamber had to answer the question whether the fact that prisoners were not affiliated to the old-age pension system, violated Article 14 ECHR in conjunction with Article 1 of the First Protocol. The Grand Chamber held that this was not the case. The decision was far from unanimous; only 10 out of 17 judges reached this conclusion. And even the majority, as the judgment shows, seems to leave an opening for the future. (With 16 votes to one, the Court also held that there had not been a violation of Article 4 of the Convention. Although the part of the judgment concerning Article 4 is interesting too, it will not be discussed here.)
A few things about the judgment of the Grand Chamber are remarkable. Both the reliance on the common ground argument, as well as the approach to the discrimination complaint in general, might be considered somewhat questionable. Regarding the former, the Grand Chamber explicitly refers to an evolving trend; it notes that while the 1987 European Prison Rules – a set of recommendations of the Committee of Ministers as to the minimum standards to be applied in prisons – did not contain any provisions on social security, the 2006 Rules recommend to include ‘as far as possible prisoners who work […] in national social security systems’ (par. 105). In order to determine the margin of appreciation in Stummer, the Grand Chamber refers to the actual common ground between member States. In an absolute majority of these States, prisoners are provided with some kind of social security, whereas only a small majority affiliates prisoners to their old-age pension systems (par. 60; par. 105). The lack of a clear consensus on affiliation to a pension system brings the Court to conclude that Austria could not be said to have violated the Convention. Though Austria ‘is required to keep the issue raised by the present case under review’, the gradual development towards affiliation to pension schemes for prisoners, could not (yet) result in the conclusion that a violation had, at this point in time, taken place.
Shortly before it brings up the common ground argument however, the Grand Chamber explicitly recognizes the complexity of the pension-issue, finding that ‘it cannot look at the question […] in isolation but has to see it as one feature in the overall system of prisoners’ social cover’ (par. 101-102). It then considers the specific characteristics of the Austrian system; the fact that prisoners in general are not able to pay social security benefits (due to a high percentage of the remuneration for their work that is deducted as a maintenance contribution), and the fact that since 1994, Austrian prisoners are affiliated to the unemployment insurance scheme.
How should we reconcile the decisive role given to the common ground concerning pension systems, with the fact that the Court recognizes that whether or not a State affiliates its prisoners to an old-age pension system, should be valued in light of the entire make up of the arrangements for prisoners in a specific State? I think the Court is right not to review the question of affiliation to a pension system on its own. This does however invalidate a too strong reliance on the common ground as regards pension scheme affiliation in particular, for such common ground can only be informative when the various features of the other member States’ social arrangements for prisoners are taken into account as well. What if there had been ‘enough’ common ground? Would that have been reason for finding a violation, regardless of the other arrangements Austria has in place for cases like Stummer?
Also the approach to the discrimination complaint raises some questions. As follows from the concurring opinion by Judge De Gaetano, the Court should not even have gone as far as looking at the proportionality of the interference, by simply concluding that the Austrian system only provided old age for the ‘gainfully employed’ – i.e., for those who contributed to the national economy –, a category to which prisoners simply did not belong. The Court however, focuses on the need to provide for old age (par. 95). In that respect Stummer was in a similar situation to ordinary employees, and hence the difference in treatment was reviewed under the Convention. This reasoning however leads to the fact that virtually every categorization made by the national legislator, can potentially violate the Convention. Also when it comes to the exclusion of groups—as for example prisoners, but maybe also the self-employed, or other categories of workers—on ‘non-suspect’ grounds, the Court seems to require an explanation, at least when the needs of the groups turn out to be similar.
The Court refers to Stec v. the United Kingdom (dec.) in order to explain that if a State creates a certain benefit, this generates a proprietary interest that falls within the ambit of Article 1, and must hence be done in a non-discriminatory fashion. Here we are however not dealing with the exclusion from a benefit, but with the lawful exclusion from a pension scheme of prisoners who are unable to pay contributions to this scheme. The Stec case is well-known for laying down the rule that first of all, a State is free ‘to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme’ (Stec (dec.), par. 54). But what does this freedom in fact mean, if not only suspect exclusions from a benefit, but also the lawful exclusion of groups from certain schemes can lead to a violation of property rights?
Concerning both the common ground reasoning, and the Court’s approach to this kind of issues in general, one can also reason in a different direction. In their partly dissenting opinion, the seven dissenters argue that more weight should have been attached to the existing common ground and the trend reflected in the practice of States and the European Prison Rules. In their opinion, the other arrangements a State has chosen to create for pensioners, should not be given too much weight since in this case the emergency relief granted to Stummer on the basis of his affiliation to the unemployment scheme, could not be compared to a pension based on the time worked and contributions paid. The former, in the words of the dissenters, ‘constitute[s] assistance, whether the latter is a right’.
With regard to the general approach of the Court, the dissenters agree that this case falls within the ambit of Article 1 of Protocol No. 1, and more explicitly, that Stummer was in a relevantly similar situation because of his need for old-age insurance cover. The dissenters are concerned however, about the trend they identify in the case law of the ECtHR of attaching considerable importance to economic realities in the member States, ‘sometimes to the detriment of fundamental rights’. But should this be something we need to worry about, or should we instead be comforted that the Court is indeed recognizing the economic well-being of the State as an important factor? Especially if by recognizing a proprietary interest in a great variety of cases, the ECtHR gets involved in more and more national social security matters and other economically laden issues, this might not be an unnecessary luxury at all.