Strasbourg Observers

Developing labour rights under the ECHR in Pengezov: one step forward and one step backward

November 17, 2023

By Gaia Zanotti

In the new decision of Pengezov v. Bulgaria the Strasbourg Court was given an opportunity to reassess not only the applicability of Art.8 ECHR i.e. the right to private life- to employment disputes but also the applicability of Art.1 of Prot.1 of the Convention- i.e. the right to peaceful enjoyment of property- to remuneration. Pengezov concerned the lengthy suspension without pay of a member of the judiciary, during which he was deprived of his stipend and was restricted from accessing alternative employment.  This new judgment will add to the growing set of decisions blurring the line between civil and political rights- i.e. those dealing with socio-economic rights under the ECHR. In this blog post, I will assess the progress made by the Strasbourg Court towards the inclusion of labour rights within the scope of the ECHR, by discussing how Pengezov fits within the Court’s jurisprudence under Art.8 and Art.1 Prot.1 in relation to work. I will argue that Pengezov represents an expansion of the material scope of the Art.8 rules concerning dismissal but also a missed opportunity to provide a more expansive interpretation on the applicability of Art.1 Prot.1 to wages.

The judgment

The applicant was a member of the judiciary who was suspended for two and a half years following the opening of a criminal investigation against him and from which he was ultimately acquitted. During the suspension, the applicant was deprived of his pay but, as he retained his judicial title, he could not seek alternative forms of employment in the public or private sector. He alleged hardship to himself and damage to his reputation. He made an application to the Strasbourg Court under Art.6, i.e. the right to a fair trial, in relation to the impartiality of the tribunal to which he had appealed the suspension decision. He also lodged a complaint under Art.8, regarding the effects of the suspension on his private life and under Art.1 Prot.1 with reference to the deprivation of his wages, that he received seven years after his initial suspension following his acquittal.

In its assessment under Art.8 the Court applied the rules established in Denisov v. Ukraine. It firstly found that Art.8 was applicable to the given facts because of the suspension’s effect on the applicant’s inner circle- given the deprivation of the applicant’s wage coupled with his inability to access alternative employment (§§67-68). The court also noted the negative effects of the suspension on the applicant’s opportunities to “establish and develop relationships with others”- and on his ability to pursue personal ambitions and self-development (§70). Finally, they observed the damage to the applicant’s reputation albeit they accepted that this was mostly due to the publicity of the criminal investigation as opposed to the suspension itself §71). These reasons served both to establish that Art.8 was applicable and that an interference with the right contained therein had occurred. The Court then turned to assess whether the interference was compliant with Art.8.2, i.e. whether it was provided for by law, was in pursuance of a legitimate aim and was necessary within a democratic society. It was found that the suspension had satisfied the necessary requirements of legality and that the protection of public trust in the judiciary could constitute a legitimate aim. When turning to the necessity requirements, the Court accepted that the state enjoyed a wide margin of appreciation. However, the Court stressed the continued need for procedural safeguards, regardless of the margin, and that given the finding of a violation under Art.6 in relation to the applicant’s inability to effectively appeal the suspension decision, the Court was satisfied that a violation of Art.8 had also occurred.  

The Court’s assessment under Art.1 Prot.1 in relation to the applicant’s deprivation of wages was much less elaborate. They did not engage with the impermanence of the deprivation as the applicant was ultimately awarded his back pay following his absolution, albeit after seven years. Instead it was noted that the applicant was not in fact working while his pay was being withheld and that Art.1 prot.1 only protect future assets if they had already been “earned(§92). For these reasons the application was dismissed under Art.1 Prot.1.

In her concurrent opinion Judge Arnardóttir, joined by Judge Pavli, noted that the applicant’s personal hardship must have been significant, especially given that the domestic legislation gave no indication on a maximum duration of the applicant’s suspension, putting the applicant in a state of significant uncertainty. Ultimately, she and Judge Pavli reached the same conclusion of the majority and agreed that a violation of Art.8 had occurred. Judge Arnardóttir did not consider the assessment under Art.1 Prot.1 in the concurrent opinion.

One step forward: An extension of the material scope of application of Art.8 in relation to employment disputes

The first notable aspect of the Court’s reasoning under Art.8 is the confirmation of Denisov v. Ukraine as the most prominent authority in relation to the application of Art.8 in employment-related disputes. In Denisov, the Strasbourg Court defined two categories of employment-related disputes under Art.8: i.e. reason-based decisions and consequence-based decisions. The first category concerns the employment-related disputes that are caused by an infringement of Art.8. This category includes, inter alia, Smith and other v. the United Kingdom in which the applicants, who were working in the military, underwent thorough inquiries into their personal lives to determine their sexual orientation. Subsequently, they were dismissed upon the investigation’s discovery of their homosexuality. Conversely, in consequence-based decisions concern circumstances in which the employment-related dispute itself constitutes an interference with Art.8, as a result of the consequences of the dispute on the applicant’s private life. According to the Court in Denisov, the Art.8 interference would take place specifically in the context of dismissal, as losing one’s job has significant implications on an individual. The Grand Chamber in Denisov also provided a list of three elements of private life that could be affected by the dismissal. These include the ‘inner circle’- which presumably refers to the effects on the applicant and immediate family, the ability to establish relationships with other and reputation. Pengezov falls within the latter.

The Court in Pengezov has provided clarity and expanded the scope of application of the Denisov rules.   Firstly, the Court gave much emphasis on pay as the most prominent of the elements of its reasoning and identified it as the main factorfor interference with one’s ‘inner circle’.

 Secondly, by applying the Denisov rules to a suspension, the Court has arguably expanded their material scope, as they had been framed by commentators as being primarily applicable to dismissal. This interpretation was understandably based on the facts of Denisov, concerning the dismissal of the applicant from his position of President of the Administrative Court of Appeal of Kyiv. Further, the case law referred to by the Grand Chamber in Denisov mostly concerned dismissal -e.g. Obst v. Germany , Schuth v. Germany; and that subsequent case law in which the Denisov rules were applied concerned dismissali.e. Piskin v. Turkey. Conversely, Pengezov concerned a suspension, which was followed by a full reinstatement of the applicant, coupled with the awarding of back pay. This is clearly a much less severe disciplinary action than dismissal, even though the applicant in the present case suffered severe personal consequences following his suspension. The application of the Denisov rules to such facts reveals that these may enjoy a wider material scope of application than previously thought, which may in turn mean that a wider set of employment-disputes would fall under the scope of Art.8.

Finally, the ease with which the Court now approaches employment-related disputes in its assessment under Art.8, despite it being a civil right, is notable. This is in sharp contrast with the lengthy deliberations in Niemetz v. Germany, i.e. the landmark decision in which the ECtHR first established that the professional ambit could fall within the scope of Art.8. The case concerned a search conducted by the national authorities into the applicant’s office. The Court rejected the respondent state’s objection, i.e. that the right to private life could not be applied to the professional ambit, noting instead the difficulty in creating a clear distinction between an individual’s private acts and those undertaken as part of their business life (§29).

One step back: the equation of ‘property’ with performance

The other notable feature of Pengezov is that the Court rejected the applicant’s argument under Art.1 Prot.1, as the wages that were being denied the applicant for the duration of his suspension could not be considered ‘property’ as they were not being ‘earned’ through effective performance, as the provision does not apply to property that has not been acquired. The Court relied on Stummer v. Austria, which concerned the exclusion of prison work from the national pension scheme. However, the Strasbourg Court had already rejected a rigid dichotomy between property already acquired and potential future property. In fact, in the decision in Rola v. Slovenia the Court had identified a violation of Art.1 Prot.1 from the applicant’s removal of his license to act in bankruptcy proceedings, which caused the applicant’s company to lose all value. The violation of the Art.1 Prot.1 was due to the Court’s interpretation of the applicant’s enterprise itself as ‘property’. While an interpretation of Rola as underpinning the applicability of Art.1 of Prot.1 to future wages would be far-fetched, it clearly constitutes a step towards the expansion of the provision as a tool to safeguard wage security. In fact, the Court in Rola was quite cognizant that the applicant’s company was his source of income, of which the revocation decision had deprived him. In this sense, the Court in Pengezov made a step back, as it reverted to a narrow understanding of the distinction between existing property and future property, by equating wages to property only when it corresponded to effected performance. The equation of wages to ‘property’ only when corresponding to effected performance is contentious, as many professions do not entail remuneration that is directly linked to performance. The unfortunate potential implication of Pengezov would be the exclusion of wages from the scope of Art.1 Prot.1 when this do not fall within this very narrow category, such as remuneration in the form of periodic allowance or payment for stand-by duties.

Furthermore, the application of this rule in Pengezov is problematic. Firstly, from the given facts, the determination of whether the applicant’s wages could constitute ‘property’ was unnecessary, as this could have been inferred from the fact that the applicant in this case received his wage retroactively in full following his reinstatement. Secondly, the extent to which the applicant had not ‘earned’ their wage is debatable, as the remuneration was arguably linked to his judicial title, as opposed to his effective performance as a judge. In fact, the applicant retained his title throughout his suspension and for that reason he was not allowed to undertake any alternative employment. This, additionally, meant that the applicant was under the obligation to remain available to effectively perform his duties as a judge but was restricted from doing so, which merited consideration within the discussion on whether the wages had been ‘earned’.

Crucially, these comments ought to be contextualized with the fact that the section of the judgment regarding Art.1 Prot.1 consists of only four paragraphs and the application under Art.1 Prot.1 was not even mentioned in the concurrent opinion, evidencing the Court’s preference for discussing employment-related issues under Art.8.


The Pengezov decision constitutes the latest addition to the Strasbourg jurisprudence on work and socio-economic issues. It ultimately reconfirms the previous jurisprudence under Art.8 on employment-related disputes and provides evidence for a potentially wider material scope of application than previously assumed. Furthermore, it is notable that the Court placed much emphasis on the applicant’s deprivation of pay in its assessment under Art.8. Therefore, this decision may represent a step forward towards the inclusion of labour rights within the ECHR. However, the Court’s rejection of the application under Art.1 Prot.1 is disappointing, as the Court missed an opportunity to extend the definition of ‘property’ to include remuneration comprehensively, as it reverted to a narrower understanding of ‘property’ which would include wages only when this corresponds to effective performance. The unfortunate consequence implied by the decision is that wages would not be protected under Art.1 Prot. 1 as property if they are paid in relation to title, as an allowance or if they constitute pay for stand-by duties. Ultimately, this case may serve as evidence of the Court’s growing reliance on Art.8 as the main provision to address socio-economic issues. 

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