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STUMMER v. AUSTRIA - 37452/02 [2011] ECHR 1096 (7 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1096.html
Cite as:
31 BHRC 573,
(2012) 54 EHRR 11,
54 EHRR 11,
[2011] ECHR 1096
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GRAND
CHAMBER
CASE OF
STUMMER v. AUSTRIA
(Application
no. 37452/02)
JUDGMENT
STRASBOURG
7 July
2011
This
judgment is final but may be subject to editorial revision.
In the case of Stummer v. Austria,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul
Costa,
President,
Nicolas
Bratza,
Peer
Lorenzen,
Françoise
Tulkens,
Josep
Casadevall,
Corneliu
Bîrsan,
Anatoly
Kovler,
Elisabeth
Steiner,
Alvina
Gyulumyan,
Dean
Spielmann,
Sverre
Erik Jebens,
Dragoljub
Popović,
Giorgio
Malinverni,
George
Nicolaou,
Ann
Power,
Kristina
Pardalos,
Vincent
A. de Gaetano,
judges,
and
Vincent Berger,
Jurisconsult,
Having
deliberated in private on 3 November 2010 and on 25 May 2011,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 37452/02) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Ernst Walter Stummer
(“the applicant”), on 14 October 2002.
The
applicant, who had been granted legal aid, was represented by Mr A.
Bammer, a lawyer practising in Vienna. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador H.
Tichy, Head of the International Law Department at the Federal
Ministry for European and International Affairs.
The
applicant complained that he was discriminated against as he was not
affiliated to the old-age pension system as a working prisoner and
was consequently deprived of a pension. He relied on Article 4 and in
substance also on Article 14, taken either in conjunction with
Article 4 or with Article 1 of Protocol No. 1.
The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). On 11 October 2007 it was declared
admissible by a Chamber of that Section composed of the following
judges: Christos Rozakis, Anatoly Kovler, Elisabeth Steiner, Khanlar
Hajiyev, Dean Spielmann, Sverre Erik Jebens and Giorgio Malinverni,
and also of Søren Nielsen, Section Registrar. On 18 March 2010
a Chamber of that Section, composed of the following judges: Christos
Rozakis, Anatoly Kovler, Elisabeth Steiner, Dean Spielmann, Sverre
Erik Jebens, Giorgio Malinverni and George Nicolaou, and also of
Søren Nielsen, Section Registrar, relinquished jurisdiction in
favour of the Grand Chamber, neither of the parties having objected
to relinquishment (Article 30 of the Convention and Rule 72).
The
composition of the Grand Chamber was determined according to the
provisions of Article 26 §§ 4 and 5 of the Convention and
Rule 24 of the Rules of Court.
The
applicant and the Government each filed further written observations
(Rule 59 § 1) on the merits.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 3 November 2010 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms B. Ohms, Deputy
Agent,
Ms I. Köck, Counsel,
Mr E.
D’Aron,
Ms A. Jankovic, Advisers;
(b) for the applicant
Mr A. Bammer, Counsel.
The
Court heard addresses by Ms Ohms and Mr Bammer, as well as answers by
Ms Ohms, Ms Köck and Mr Bammer to questions put by the judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1938 and lives in Vienna. He
has spent about twenty-eight years of his life in prison. During his
prison terms he worked for lengthy periods in the prison kitchen or
the prison bakery. As a working prisoner the applicant was not
affiliated to the old-age pension system under the General Social
Security Act. However, from 1 January 1994 he was affiliated to the
unemployment insurance scheme in respect of periods worked in prison.
On
8 February 1999 the applicant filed an application for an early
retirement pension with the Workers’ Pension Insurance Office
(Pensionsversicherungsanstalt der Arbeiter – “the
Pension Office”).
By
decision of 8 March 1999 the Pension Office dismissed the application
on the ground that the applicant had failed to accumulate 240
insurance months, the required minimum for an early retirement
pension. A list of the applicant’s insurance periods, running
from October 1953 to February 1999, was appended to the decision.
According to the list, the applicant had accumulated only 117
insurance months. The list shows lengthy periods during which no
contributions were made, in particular from May 1963 to May 1964,
from July 1965 to September 1968, from June 1969 to January 1974,
from April 1974 to March 1984, from June 1984 to May 1986 and from
February 1987 to April 1994. Between May 1994 and February 1999 a
number of months, during which the applicant received unemployment
benefits or emergency relief payments under the Unemployment
Insurance Act, were counted as substitute periods.
Subsequently,
the applicant brought an action against the Pension Office before the
Vienna Labour and Social Court (Arbeits- und Sozialgericht).
He submitted that he had been working for twenty-eight years in
prison and that the number of months worked during that time should
be counted as insurance months for the purpose of assessing his
pension rights.
On
4 April 2001 the Labour and Social Court dismissed the applicant’s
claim. It confirmed that the applicant had not completed the required
minimum number of insurance months. Referring to section 4(2) of the
General Social Security Act, the court noted that prisoners
performing obligatory work while serving their sentence were not
affiliated to the compulsory social insurance scheme. According to
the Supreme Court’s established case-law (judgment 10 ObS 66/90
of 27 February 1990 and judgment 10 ObS 52/99s of 16 March 1999),
their work, corresponding to a legal obligation, differed from work
performed by employees on the basis of an employment contract. The
difference in treatment under social security law did not disclose
any appearance of discrimination.
The
applicant, now assisted by counsel, appealed. He argued in particular
that the wording of section 4(2) of the General Social Security Act
did not distinguish between work on the basis of a legal obligation
and work based on a contract. Moreover, he argued that the
distinction was not objectively justified. Since 1993, prisoners who
worked had been affiliated to the unemployment insurance scheme. In
the applicant’s view there was no reason not to affiliate them
to the old-age pension system.
On
24 October 2001 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant’s appeal. It held that the Labour and
Social Court had correctly applied the law. According to the Supreme
Court’s established case-law, prisoners performing obligatory
work were not to be treated as employees within the meaning of
section 4(2) of the General Social Security Act and were therefore
not affiliated to the compulsory social insurance scheme. The fact
that, since the 1993 amendment of the Execution of Sentences Act,
prisoners were affiliated to the unemployment insurance scheme was
not conclusive as regards the question of their affiliation to the
old-age pension system. In essence, the applicant raised a question
of legal or social policy. However, it was not for the courts but for
the legislature to decide whether or not to change the provisions
relating to the social insurance of prisoners. In that connection the
Court of Appeal noted that it did not share the applicant’s
doubts regarding the possible unconstitutionality of working
prisoners’ non-affiliation to the old-age pension scheme.
On
12 February 2002 the Supreme Court (Oberster Gerichtshof)
dismissed an appeal on points of law by the applicant. Its judgment
was served on the applicant on 6 May 2002.
On
29 January 2004 the applicant completed his last prison term.
Subsequently he received unemployment benefits until 29 October 2004
and, upon their expiry, emergency relief payments (Notstandshilfe).
According to counsel’s submissions at the hearing, the
applicant currently receives some 720 euros (EUR) per month (composed
of EUR 15.77 per day plus EUR 167 per month in emergency relief
payments and EUR 87 as an allowance towards his rent expenses).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The General Social Security Act
The
basis of the Austrian social security system is laid down in two
laws: the General Social Security Act (Allgemeines
Sozialversicherungsgesetz) and the Unemployment Insurance Act
(Arbeitslosenversicherungsgesetz). Austrian social security
law is based on the contributory principle.
1. General rules
The
General Social Security Act encompasses health and accident insurance
and old-age pension.
Section
4 of the General Social Security Act regulates compulsory affiliation
to the social security system. Pursuant to section 4(1)(1), employees
are affiliated to the health and accident insurance scheme and to the
old-age pension scheme. Section 4(2) defines an employee as any
person working in consideration of remuneration in a relationship of
personal and economic dependency. A further condition for compulsory
affiliation is that the salary exceeds the marginal earnings
threshold (Geringfügigkeits-grenze). At current levels
this amount is set at EUR 366.33 per month (section 5(2)).
For
an employee affiliated to the social security system, compulsory
contributions have to be paid in part by the employer and in part by
the employee.
Section
17(1) provides that persons who are no longer covered by compulsory
affiliation to the social security system may continue to pay
voluntary contributions (freiwillige Weiterversicherung) if
they have accumulated at least twelve insurance months out of the
previous twenty four months within the system or at least three
insurance months during each of the previous five years.
Contributions can be reduced within certain limits if the economic
circumstances of the person concerned justify such a reduction.
Entitlement
to an old-age pension arises when a person who has reached
pensionable age has accumulated a sufficient number of insurance
months, namely a minimum of 180 months or, in the case of an early
retirement pension, 240 months. When calculating the number of
insurance months, certain periods during which no gainful activity
has been pursued, and thus no contributions were made, are
nevertheless taken into account as substitute periods (Ersatzzeiten),
for instance periods of child-raising, military service or
unemployment.
The
amount of an old-age pension depends mainly on the number of
insurance months and the level of contributions paid. If the pension
thus calculated does not reach a certain minimum level, which at
current rates is EUR 783.99 per month for a single person and EUR
1,175.45 for a couple, a supplementary payment (Ausgleichszulage)
is added in order to reach the minimum level.
2. Position of prisoners
During
a prison term exceeding one month, entitlements to health, accident
and pension insurance are suspended (section 78 of the General Social
Security Act). The livelihood of prisoners is to be provided by the
prison authorities. Likewise, their health care and care in case of
an accident have to be provided for by the State in accordance with
the Execution of Sentences Act (see below paragraphs 41 and 44).
As
a matter of principle, working prisoners are not affiliated to the
general social insurance system. According to the Supreme Court’s
case-law, prisoners performing work are not treated as employees
within the meaning of section 4(2) of the General Social Security
Act.
In
a judgment of 27 February 1990 (10 Obs 66/90) the Supreme Court
examined an appeal by a former prisoner against a decision refusing
him an invalidity pension on the ground that he had not accumulated
the requisite number of insurance months. The Supreme Court ruled as
follows:
“According to the unanimous legal opinion of the
competent Federal Ministry (Collection of Publications in social
insurance matters, SVSlg 19.570), the Administrative Court
(2.2.1972, 782/71 and 62/72, VwSlgNF 8162 = SVSlg 21.171) and the
Vienna Court of Appeal (SVSlg 8.868, 21.172, 26.918, 30.930 and
32.418), this work, which is performed on the basis of a statutory
rather than a voluntarily accepted duty to work, does not fall within
the scope of the compulsory insurance scheme. Legal commentators also
favour the interpretation that social insurance law, like labour law,
requires that employment contracts be established voluntarily.
Services rendered compulsorily under public law are not based on any
service contract. Accordingly, work performed in the context of
execution of a sentence cannot be subsumed within s. 4(2) of the
General Social Security Act (see Krejci-Marhold in Tomandl, SV-System
3. ErgLfg 46; MGA ASVG 49. ErgLfg 125; Krejci in Rummel, ABGB §
1151 Rz 16). In its judgment of 26 November 1971 (B 128/71, VfSlg
6582 = SVSlg 21.170), the Constitutional Court held that the decision
of the legislature that work performed in the context of execution of
a prison sentence did not fall within the social insurance scheme –
because the requisite voluntary acceptance of a specific duty to work
required in order to make out a contract of employment necessitating
the payment of social insurance contributions was absent – did
not infringe the principle of equal treatment.
...
The medical care due to prisoners in accordance with s.
66 et seq. of the Execution of Sentences Act and the benefits due to
them, in accordance with s. 76 et seq. of that Act, after
work-related accidents or illnesses within the meaning of s. 76(2-4)
of that Act, provide to this category of persons a statutory health
and accident insurance scheme adapted to the prison context.
The fact that prisoners also, in the context of their
duty to work – other than, for example, in the context of an
employer-employee relationship – are not covered by compulsory
insurance under the statutory pension scheme is justifiable on
grounds of the above-mentioned substantive differences in
relationship and accordingly – as held by the Constitutional
Court in its judgment – does not infringe the principle of
equal treatment.
Periods spent in pre-trial detention or serving a prison
sentence or in preventive detention will, in accordance with the
General Social Security Act, only be regarded as compulsory
contributory periods if the custodial measures have been imposed
either on political grounds – other than National Socialist
activity – or on religious grounds or on grounds of descent (s.
500 and s. 502(1)) or if an Austrian court (in accordance with the
Compensation (Criminal Proceedings) Act) has given a binding decision
in respect of the periods of detention recognising a claim for
damages for the detention or conviction (s. 506a). Such periods of
time, regarded as valid compulsory contributory periods, are to be
regarded in the first-mentioned case as not requiring the payment of
contributions (s. 502(1) third sentence); in the second-mentioned
case the Federal State shall pay the corresponding contributions to
the relevant insurance institution (s. 506a second sentence). The
purpose in both cases is to compensate for the disadvantages incurred
under social insurance law that have arisen on socially acceptable
grounds rather than deprivation of liberty on grounds of guilty
conduct. An extension of these exceptional provisions to time served
in detention on grounds of culpable conduct would be contrary to the
principle of equal treatment. Recognition of such periods of time as
substitute periods would also be contrary to the principle of equal
treatment, for similar reasons. ... Prisoners to whom the
above-mentioned exceptions under s. 502(1) and s. 506a do not apply
shall not thereby accumulate, in the context of their duty to work,
either contributory periods under the compulsory insurance scheme or
substitute periods. They are not, however, prevented by the execution
of the sentence from continuing to make contributions to the old-age
pension insurance scheme under s. 17 and accumulating contributory
periods through the payment of voluntary contributions, whereby
continued insurance, at the request of the contributor, as far as
this appears justified on the basis of his or her economic situation,
shall be permitted, in accordance with s. 76a(4), at a lower
contribution level than the one provided for in ss. (1-3) of that
provision. In accordance with s. 75(3) of the Execution of
Sentences Act, prisoners are to be informed of the possibilities and
advantages of, inter alia, optional continued insurance, and
they are also permitted to use funds for the payment of contributions
to the social insurance scheme which are not otherwise available to
them during execution of their sentence. By virtue of the very
flexible continued insurance (see s. 17(7-8)) – particularly in
respect of the beginning, end and determination of the contributory
months – a prisoner can also accumulate further contributory
months in order to make up the qualifying period and/or obtain a
higher pensions increment. In this connection the fact should not be
overlooked that if one were to proceed on the basis that a prisoner
is covered under the invalidity and old-age pension insurance scheme
in respect of work done during the execution of the sentence,
contributions would accordingly have to be made for the relevant
periods. Other than under s. 506a, according to which the Federal
State has to pay the contributions corresponding to these
contributory periods (as part of the criminal compensation scheme) to
the relevant insurance institution, a State contribution would not be
reasonable here. ... It would not be reasonable in such cases to
expect the community of insured persons to accept that periods for
which no contributions have been made should give rise to pension
entitlements; prisoners would have to make such contributions, so the
position would not be essentially different from optional insurance.
Accordingly, if the legislature has decided that work done in the
context of a prisoner’s duty to work cannot fundamentally give
rise to compulsory contributory periods or substitute periods and, in
the light of that, has made provision only for the above-mentioned
exceptions, that decision is based on objective considerations.
Accordingly, the Supreme Court has no doubts regarding
the constitutionality of the statutory provisions applicable to the
present case.”
In
a judgment of 16 March 1999 (10 ObS 52/99s) the Supreme Court
confirmed its previous judgment.
For
the purpose of calculating entitlement to an old-age pension, periods
spent in prison are only taken into consideration in specific
circumstances defined in the General Social Security Act. For
instance, periods spent in prison for which compensation has been
granted under the Compensation (Criminal Proceedings) Act
(Strafrechtliches Entschädigungsgesetz) are counted as
substitute periods.
B. The Unemployment Insurance Act and relevant practice
Employees
are also affiliated to the unemployment insurance scheme. Compulsory
contributions have to be paid in part by the employer and in part by
the employee.
Since
the 1993 amendment of the Unemployment Insurance Act, prisoners who
perform work in accordance with section 44(1) of the Execution of
Sentences Act are affiliated to the unemployment insurance scheme
pursuant to section 66a of the Unemployment Insurance Act. The
employee’s part of the contributions is to be paid from the
prisoner’s remuneration, if the remuneration exceeds the
marginal earnings threshold, while the employer’s part is to be
paid by the State, through the Ministry of Justice. The amendment
entered into force on 1 January 1994.
As
regards the amendment of the law, which formed part of a broader
reform of the system of execution of sentences, the Parliamentary
Judicial Committee (Justizausschuß) considered the
affiliation of working prisoners to the unemployment insurance scheme
to constitute a first step towards their full integration into the
social security system. The Judicial Committee underlined that
affiliating working prisoners to the unemployment insurance scheme
was an important step towards increasing their chances of
reintegration into society and limiting the prospect of recidivism
(see 1253 Annex to the Minutes of the National Council (Beilagen
zu den Stenographischen Protokollen des Nationalrates),
XVIII.GP).
Entitlements
under the Unemployment Insurance Act include access to training
courses, job-search facilities, and payment of unemployment benefits
(which are to a certain extent related to previous salary) for a
certain period. Upon the expiry of unemployment benefits, the insured
person is entitled to payment of emergency relief, which is designed
to provide a minimum amount of subsistence. Emergency relief will
continue to be paid after a person has reached pensionable age if no
entitlement to a pension is granted.
At
the hearing the Government provided the following information on the
percentage of working prisoners and prisoners receiving unemployment
benefits following their release:
- in
2009, 12,460 persons were detained, of whom 8,903 (roughly 71%) were
working and thus covered by unemployment insurance. Only 2,490 of
these working prisoners actually paid contributions as they earned
more than the required minimum level, and the others did not have to
pay contributions;
-
between 1 January and 30 June 2010, 9,477 persons were detained,
6,791 (roughly 71%) of whom were working and thus covered by
unemployment insurance. Only 1,879 of these working prisoners
actually paid contributions as they earned more than the required
minimum level per month, and the others did not have to pay
contributions;
-
between 1 January 2009 and 30 June 2010, 2,086 persons qualified to
receive unemployment benefits on account of the fact that they were
included in the unemployment insurance scheme during their prison
term; 1,898 of them applied for unemployment benefits upon their
release, receiving an average benefit of EUR 21.09 per day (the
general average being EUR 26.90 per day).
C. Social assistance
Social
security is complemented by means-tested social assistance. The
latter is designed to provide persons who do not have the necessary
means (personal means or entitlements from old-age pension insurance
or unemployment insurance) with a minimum income in order to meet
their basic needs.
On
1 September 2010 a new system, namely the means-tested minimum income
scheme (bedarfsorientierte Mindestsicherung), entered into
force, replacing social assistance. It guarantees a minimum income to
all persons who are willing and able to work or who are over
sixty-five years old and do not have other means of subsistence. The
amount is aligned with the minimum pension.
D. The Execution of Sentences Act and relevant practice
Pursuant
to section 44(1) of the Execution of Sentences Act
(Strafvollzugsgesetz), any prisoners who are fit to work are
obliged to perform work assigned to them.
Section
45(1) obliges the prison authorities to provide each prisoner with
useful work. Paragraph 2 specifies the different kinds of work which
may be assigned to prisoners. They include, inter alia,
tasks to be carried out within the prison, work for public
authorities, work for charities, and work for private employers.
Under
section 46(3), the prison authorities may conclude contracts with
private enterprises as regards prisoners’ work.
Pursuant
to section 51, the Federal State (der Bund) receives the
proceeds of prisoners’ work.
Prisoners
who perform their work satisfactorily have a right to remuneration.
The amounts of remuneration – per hour and type of work –
are fixed in section 52(1). At current rates they are as follows:
- for
light unskilled work EUR 5.00
- for
heavy unskilled work EUR 5.63
- for
manual work EUR 6.26
- for
skilled work EUR 6.88
- for
work performed by a skilled worker EUR 7.50
The
prison authorities have to provide for the livelihood of prisoners
(section 31).
Pursuant
to section 32, all prisoners have to contribute to the costs of the
execution of their sentence unless they fall within the scope of
certain exceptions. If the prisoner works, the contribution amounts
to 75% of his or her remuneration. It is deducted automatically from
the remuneration.
Moreover,
the employee’s part of the contribution to the unemployment
insurance scheme is deducted from the prisoner’s remuneration.
The remainder of the prisoner’s remuneration is used as
follows: half of it is given to the prisoner as “house money”
and the other half is kept as savings which the prisoner receives
upon release (section 54).
Health
and accident care for prisoners are to be provided by the prison
authorities pursuant to sections 66 et seq. and 76 et seq. of the
Execution of Sentences Act. In essence, the entitlement to health and
accident care corresponds to the entitlement under the General Social
Security Act.
If
prisoners refuse work assigned to them, this constitutes an offence
under section 107(1)(7) of the Execution of Sentences Act. The
penalties set out in section 109 range from a reprimand, or a
reduction or withdrawal of certain rights (for instance, the right to
use “house money”, to watch television, to send and
receive correspondence or telephone calls), to a fine or house arrest
(solitary confinement).
According
to the information provided by the Government, more than 70% of
prisoners in Austria are currently working. Owing to the requirements
of prison routine, the average working day is between six and six and
a half hours. However, time spent by a prisoner undergoing
therapeutic or social treatment is regarded and remunerated as
working time up to a maximum of five hours per week.
III. RELEVANT INTERNATIONAL MATERIALS
A. United Nations instruments
1. Forced Labour Convention (No. 29) of the
International Labour Organisation
The
Forced Labour Convention (No. 29) was adopted on 28 June 1930 by the
General Conference of the International Labour Organisation (ILO) and
entered into force on 1 May 1932. Article 2, in so far as relevant in
the present context, provides as follows:
“1. For the purposes of this Convention
the term forced or compulsory labour shall mean all work or service
which is exacted from any person under the menace of any penalty and
for which the said person has not offered himself voluntarily.
2. Nevertheless, for the purposes of this
Convention, the term forced or compulsory labour shall not include
...
(c) any work or service exacted from any
person as a consequence of a conviction in a court of law, provided
that the said work or service is carried out under the supervision
and control of a public authority and that the said person is not
hired to or placed at the disposal of private individuals, companies
and associations.”
The
International Labour Conference (the annual meeting of member States
of the ILO) at its 96th session, 2007, carried out a
General Survey concerning the Forced Labour Convention (no. 29) based
on a report of the Committee of Experts on the Application of
Conventions and Recommendations (“the Committee”).
The
report dealt inter alia with the question of prison work for
private enterprises. Noting that prison work for private employers
was prohibited by Article 2 (2)(c) of Convention no. 29, the
Committee found that there might be conditions in which,
notwithstanding their captive circumstances, prisoners could be
considered to have offered themselves voluntarily and without the
menace of any penalty for work with a private employer. In this
connection, apart from a formal written consent of the prisoner,
conditions approximating a free labour relationship (in terms of wage
levels, social security and occupational safety and health) were
regarded to be the most reliable indicator of the voluntariness of
labour. If such conditions were met, prison work for private
enterprises was considered not to come under the definition of forced
labour of Article 2 (1) and consequently to fall outside the scope of
the Convention no. 29 (§§ 59-60 and §§ 114-116).
2. International Covenant on Civil and Political Rights
(ICCPR)
The
ICCPR was adopted on 16 December 1966 by United Nations General
Assembly Resolution 2200A (XXI) and entered into force on 23 March
1976. Article 8, in so far as material, reads as follows:
“3 (a) No one shall be
required to perform forced or compulsory labour;
(b) Paragraph 3 (a) shall not be held to
preclude, in countries where imprisonment with hard labour may be
imposed as a punishment for a crime, the performance of hard labour
in pursuance of a sentence to such punishment by a competent court;
(c) For the purpose of this paragraph the
term ‘forced or compulsory labour’ shall not include:
(i) Any work or service, not referred to in
subparagraph (b), normally required of a person who is under
detention in consequence of a lawful order of a court, or of a person
during conditional release from such detention;
...”
B. Council of Europe materials
1. European Prison Rules
The
European Prison Rules are recommendations of the Committee of
Ministers to member States of the Council of Europe as to the minimum
standards to be applied in prisons. States are encouraged to be
guided in legislation and policies by those rules and to ensure wide
dissemination of the Rules to their judicial authorities as well as
to prison staff and inmates.
(a) The 1987 European Prison Rules
The
1987 European Prison Rules (Recommendation No. R (87) 3 – “the
1987 Rules”) were adopted by the Committee of Ministers of the
Council of Europe on 12 February 1987.
In
Part I they contained a number of basic principles, including the
following:
“1. The deprivation of liberty shall be
effected in material and moral conditions which ensure respect for
human dignity and are in conformity with these rules.
...
3. The purposes of the treatment of persons
in custody shall be such as to sustain their health and self-respect
and, so far as the length of sentence permits, to develop their sense
of responsibility and encourage those attitudes and skills that will
assist them to return to society with the best chance of leading
law-abiding and self-supporting lives after their release.
...”
In
part IV, treatment objectives and regimes, they contained the
following rules:
“64. Imprisonment is by the deprivation
of liberty a punishment in itself. The conditions of imprisonment and
the prison regimes shall not, therefore, except as incidental to
justifiable segregation or the maintenance of discipline, aggravate
the suffering inherent in this.
65. Every effort shall be made to ensure that
the regimes of the institutions are designed and managed so as:
a. to ensure that the conditions of
life are compatible with human dignity and acceptable standards in
the community;
b. to minimise the detrimental effects
of imprisonment and the differences between prison life and life at
liberty which tend to diminish the self-respect or sense of personal
responsibility of prisoners;
...”
Also
in Part IV, under the heading “Work”, they contained the
following rules:
“71.1. Prison work should be seen as a
positive element in treatment, training and institutional management.
2. Prisoners under sentence may be required
to work, subject to their physical and mental fitness as determined
by the medical officer.
3. Sufficient work of a useful nature, or if
appropriate other purposeful activities shall be provided to keep
prisoners actively employed for a normal working day.
4. So far as possible the work provided shall
be such as will maintain or increase the prisoner’s ability to
earn a normal living after release.
...
72. The organisation and methods of work in
the institutions shall resemble as closely as possible those of
similar work in the community so as to prepare prisoners for the
conditions of normal occupational life. ...
...
74.1. Safety and health precautions for
prisoners shall be similar to those that apply to workers outside.
2. Provision shall be made to indemnify
prisoners against industrial injury, including occupational disease,
on terms not less favourable than those extended by law to workers
outside.
...
76.1. There shall be a system of equitable
remuneration of the work of prisoners.”
(b) The 2006 European Prison Rules
On
11 January 2006 the Committee of Ministers of the Council of Europe
adopted a new version of the European Prison Rules, Recommendation
Rec(2006)2 (“the 2006 Rules”). It noted that the 1987
Rules “needed to be substantively revised and updated in order
to reflect the developments which ha[d] occurred in penal policy,
sentencing practice and the overall management of prisons in Europe”.
The
2006 Rules contain, in Part I, the following basic principles, inter
alia:
“2. Persons deprived of their liberty
retain all rights that are not lawfully taken away by the decision
sentencing them or remanding them in custody.
3. Restrictions placed on persons deprived of
their liberty shall be the minimum necessary and proportionate to the
legitimate objective for which they are imposed.
...
5. Life in prison shall approximate as
closely as possible the positive aspects of life in the community.
6. All detention shall be managed so as to
facilitate the reintegration into free society of persons who have
been deprived of their liberty.”
The
commentary on the 2006 Rules (prepared by the European Committee on
Crime Problems (CDPC)) noted that Rule 2 emphasised that the loss of
the right to liberty should not lead to an assumption that prisoners
automatically lose other political, civil, social, economic and
cultural rights, so that restrictions should be as few as possible.
Rule 5, the commentary observes, underlines the positive aspects of
normalisation, recognising that, while life in prison can never be
the same as life in a free society, active steps should be taken to
make conditions in prison as close to normal life as possible. The
commentary further states that Rule 6 “recognises that
prisoners, both untried and sentenced, will eventually return to the
community and that prison life has to be organised with this in
mind”.
In
Part II (“Conditions of imprisonment”), Rule 26 of the
2006 Rules deals with the various aspects of prison work. In so far
as relevant, it reads as follows:
“26.1 Prison work shall be approached
as a positive element of the prison regime and shall never be used as
a punishment.
26.2 Prison authorities shall strive to
provide sufficient work of a useful nature.
26.3 As far as possible, the work provided
shall be such as will maintain or increase prisoners’ ability
to earn a living after release.
...
26.7 The organisation and methods of work in
the institutions shall resemble as closely as possible those of
similar work in the community in order to prepare prisoners for the
conditions of normal occupational life.
...
26.9 Work for prisoners shall be provided by
the prison authorities, either on their own or in co-operation with
private contractors, inside or outside prison.
26.10 In all instances there shall be
equitable remuneration of the work of prisoners.
...
26.13 Health and safety precautions for
prisoners shall protect them adequately and shall not be less
rigorous than those that apply to workers outside.
26.14 Provision shall be made to indemnify
prisoners against industrial injury, including occupational disease,
on terms not less favourable than those extended by national law to
workers outside.
...
26.17 As far as possible, prisoners who work
shall be included in national social security systems.”
The
Commentary on Rule 26 underlines the principle of normalisation of
prison work in that provisions for health, safety, working hours and
“even involvement in national social security systems”
should reflect those for workers on the outside. In contrast, the
1987 Rules, although they contain the notion of normalisation of
prison work, are silent on the question of prisoners’ inclusion
in national social security systems.
Part
VII of the 2006 Rules (“Sentenced prisoners”) contains
further rules regarding the objective of the regime for sentenced
prisoners:
“102.1 In addition to the rules that
apply to all prisoners, the regime for sentenced prisoners shall be
designed to enable them to lead a responsible and crime-free life.
102.2 Imprisonment is by the deprivation of
liberty a punishment in itself and therefore the regime for sentenced
prisoners shall not aggravate the suffering inherent in
imprisonment.”
It
also deals with work as one aspect of the regime for sentenced
prisoners. Rule 105, in so far as relevant, provides as follows:
“105.2 Sentenced prisoners who have not
reached the normal retirement age may be required to work, subject to
their physical and mental fitness as determined by the medical
practitioner.
105.3 If sentenced prisoners are required to
work, the conditions of such work shall conform to the standards and
controls which apply in the outside community.”
2. The European Social Charter
The
European Social Charter, a Council of Europe treaty which was adopted
in 1961 and revised in 1996, is also of some relevance in the present
context. Article 1, dealing with the right to work, provides:
“With a view to ensuring the effective exercise of
the right to work, the Parties undertake:
(1) to accept as one of their primary aims
and responsibilities the achievement and maintenance
of as high and stable a level of employment as possible, with a
view to the attainment of full employment;
(2) to protect effectively the right of the
worker to earn his living in an occupation freely entered upon;
...”
The
European Committee of Social Rights, the body responsible for
monitoring States Parties’ compliance with the European Social
Charter, has interpreted Article 1 § 2 to mean that prison work
must be strictly regulated, in terms of pay, working hours and social
security, particularly if prisoners are working for private firms.
Prisoners may only be employed by private enterprises with their
consent and in conditions as similar as possible to those normally
associated with a private employment relationship (see Digest of
the Case Law of the European Committee of Social Rights,
1 September 2008, p. 23).
C. Comparative European law
From
the information available to the Court, including a survey on
comparative law taking into account the national laws of forty out of
the forty-seven member States of the Council of Europe, it would
appear that:
- in
twenty-five member States prisoners are, at least in some
circumstances, required to work, namely Azerbaijan, the Czech
Republic, Estonia, Finland, Georgia, Germany, Hungary, Ireland,
Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Norway,
Poland, Montenegro, Russia, Slovakia, Spain, Sweden, Switzerland,
Turkey, Ukraine and the United Kingdom;
-
twenty-two member States give prisoners access to the old-age pension
system, namely Albania, Andorra, Azerbaijan, Croatia, Cyprus, Czech
Republic, Finland, France, Ireland, Italy, Latvia, Lithuania, Norway,
Portugal, Russia, Slovakia, Slovenia, Switzerland, “the former
Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United
Kingdom. In some of these States prisoners are not automatically
covered by the insurance scheme (by way of compulsory contributions
or tax deduction) but only have the possibility of paying voluntary
contributions;
- in
twelve member States prisoners are not covered by an old-age pension
scheme, namely Belgium, Bosnia and Herzegovina, Bulgaria, Estonia,
Georgia, Greece, Hungary, Malta, Montenegro, the Netherlands, Romania
and Serbia;
- in
a third group of member States affiliation to the social security
system (including old-age pension) depends on the type of work
performed, mainly on whether it is work for outside employers/
remunerated work or not. This is the case in Germany, Luxembourg,
Poland, Spain and Sweden. In Denmark entitlement to an old-age
pension is not related to work and payment of contributions. All
persons of pensionable age are entitled to receive a basic pension;
-
thirty-seven member States, that is, an absolute majority, provide
prisoners, or at least certain categories of prisoners, with some
access to social security protection, either by affiliating them to
the general social security system or parts of it, or by providing
them with a specific type of insurance or other protection.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
The
applicant complained that the exemption of those engaged in prison
work from affiliation to the old-age pension system was
discriminatory. He relied in substance on Article 14, taken in
conjunction with Article 1 of Protocol No. 1.
Article
14 provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Article
1 of Protocol No. 1 provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The parties’ submissions
1. The applicant
The
applicant referred to the principle that deprivation of liberty was a
punishment in itself and that measures concerning a prisoner should
not aggravate the suffering inherent in imprisonment. He argued that
the exclusion of working prisoners from affiliation to the old-age
pension system was contrary to that principle as it produced
long-term effects going beyond the serving of the prison term.
Furthermore,
he asserted that working prisoners were in the same situation as
other employees as regards the need to provide for their old age
through social insurance. The domestic courts’ interpretation
of section 4(2) of the General Social Security Act, namely that
a distinction had to be drawn between voluntary work on the basis of
a regular employment contract and prisoners’ work performed in
fulfilment of their statutory obligation to work, was not a
convincing reason for their exclusion from affiliation to the old-age
pension system.
The
two situations were not fundamentally different in the applicant’s
submission. In reality, the vast majority of people at liberty were
also obliged to work, if not by law, by the necessity of earning a
livelihood. Work, whether performed in or outside the prison context,
always served a variety of purposes going beyond the financial aspect
of remuneration. The types of work performed by prisoners were not
fundamentally different from the types of work performed by other
persons. In sum, the exclusion of working prisoners from affiliation
to the old-age pension system was not based on any factual difference
and therefore required justification.
In
the applicant’s view, no such justification existed. Firstly,
the exclusion of working prisoners from affiliation to the old-age
pension system did not serve any legitimate aim. In so far as the
Government had referred to the strained financial situation of the
social security system, mere budgetary considerations could not
suffice to exclude a vulnerable group from social protection.
Secondly,
the applicant maintained that the Government had not shown objective
and reasonable grounds for the difference in treatment. In
particular, he contested the Government’s argument that working
prisoners could not pay meaningful contributions and that counting
periods of prison work as insurance periods would therefore grant
prisoners an unjustified privilege as compared to regular employees
who had to pay full social security contributions. Since, pursuant to
section 51 of the Execution of Sentences Act, the State received the
proceeds from the work of prisoners, it could reasonably be expected
to pay social security contributions. The Government’s further
argument as to whether or not periods of detention could justifiably
be regarded as substitute periods was therefore of no relevance.
In
respect of the possibility for prisoners to make voluntary
contributions to the pension scheme under section 17 of the General
Social Security Act, the applicant argued that many prisoners did not
fulfil the requirement of having accumulated a sufficient number of
insurance months in previous periods. Moreover, the costs of
voluntary insurance normally exceeded the limited financial resources
of prisoners, as 75% of their modest remuneration for work was used
as a contribution to the costs of serving their sentence, pursuant to
section 32 of the Execution of Sentences Act.
2. The Government
The
Government argued first and foremost that the non-affiliation of
working prisoners to the old-age pension system was not
discriminatory within the meaning of Article 14 of the Convention, as
working prisoners were not in an analogous situation to regular
employees.
They
gave a detailed description of the organisation of prison work in
Austria, underlining that prison work served the primary purpose of
reintegration and resocialisation. They noted that the relevant
Council of Europe standards, as well as the latest report of the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) in respect of Austria,
acknowledged the importance of work for providing prisoners with an
opportunity to preserve or improve their professional qualifications,
giving them a purposeful activity and a structured daily routine to
make their prison term more bearable and preparing them to take up
regular employment after release.
Prisoners
were obliged to work pursuant to section 44(1) of the Execution of
Sentences Act and prison authorities were under an obligation to
provide them with suitable work in accordance with section 45(1) of
that Act. On account of prison conditions, prisoners worked an
average of five to six hours per day. Although this was not required
by any provision of the Convention, prisoners received remuneration.
The amounts were fixed by law and varied between EUR 5.00 and EUR
7.50 per hour according to the type of work performed. Periods spent
by prisoners undergoing therapeutic or social treatment were regarded
as working hours up to a maximum of five hours per week. This was
clearly a beneficial form of treatment, underlining that
resocialisation was the aim of prison work. The fact that part of the
remuneration was used as a maintenance contribution was not at
variance with the Convention.
In
sum, regarding its nature and aim, prison work differed considerably
from regular employment. The former, corresponding to a statutory
obligation, was geared to resocialisation and reintegration, while
the latter was based on an employment contract and served the purpose
of securing a person’s subsistence and professional
advancement. Consequently, treating periods of prison work
differently for the purpose of old-age pension insurance was not only
justified but was required by the different factual situation.
Counting periods for which no contributions were made as insurance
periods would give working prisoners an unjustified advantage over
regular employees.
The
legislature’s decision not to count periods during which a
prisoner worked as qualifying or substitute periods was likewise
based on objective reasons in the Government’s submission.
Under the relevant provisions of the General Social Security Act,
periods spent in prison were, inter alia, treated as
qualifying periods if the person concerned had been granted
compensation in respect of the detention under the Compensation
(Criminal Proceedings) Act. In that case the State had to pay the
social security contributions in order to compensate the person
concerned for disadvantages suffered under social security law as a
result of the detention. To treat persons who were lawfully
imprisoned in the same way would lead to equal treatment of unequal
facts. To treat periods spent in detention as substitute periods,
without payment of contributions, would also create imbalances in the
social security system. Generally, the legislature considered that
substitute periods were periods during which persons were prevented
from making contributions on socially accepted grounds, such as
school education, childbirth, unemployment, illness, military or
alternative military service.
Moreover,
it was open to prisoners to make voluntary contributions to the
old-age pension system under section 17 of the General Social
Security Act. That Act also provided for the possibility of reducing
the amount to be paid to a lower level than that of normal
contributions. However, the Government stated that, for data
protection reasons, they were unable to provide statistical data on
the number and proportion of prisoners making use of this
possibility.
In
the alternative, the Government argued that even assuming that
working prisoners were in an analogous situation to regular
employees, the difference in treatment was justified. In practice,
even if prisoners were not excluded from affiliation to the old-age
pension system, they would not be able to make meaningful
contributions, as very often their remuneration, after deduction of
the maintenance contribution, would not reach the threshold of EUR
366.33 of so-called marginal earnings, below which employees were in
any case not covered by compulsory insurance under the General Social
Security Act. Given the strained financial situation of the social
security institutions, only persons who were able to make meaningful
contributions could be included in the old-age pension system.
Moreover,
Contracting States enjoyed a wide margin of appreciation in the
organisation of their social security systems. Even the 2006 European
Prison Rules only recommended that “as far as possible,
prisoners who work shall be included in national social security
systems”.
The
Government explained that since the 1993 amendment of the
Unemployment Insurance Act, working prisoners had been affiliated to
the unemployment insurance scheme. This amendment, which was part of
a broader reform of the system of execution of sentences, had been
preceded by years of intensive discussion. The decision to integrate
prisoners into the unemployment insurance scheme but not the old-age
pension scheme was motivated by the consideration that unemployment
insurance, which encompassed not only financial benefits but access
to training courses and job-finding services, was the most effective
instrument for furthering prisoners’ reintegration after
release. It had been seen as a first step towards including them into
the social security system at large. However, as insurance under the
General Social Security Act encompassed health and accident insurance
plus affiliation to the old-age pension system, and prisoners’
health care and accident insurance were provided for by the prison
authorities under the Execution of Sentences Act, their affiliation
to the old-age pension scheme would have necessitated more complex
amendments. Moreover, according to studies carried out at the time,
it was considered to be the most cost-intensive factor.
In
addition, the Government pointed out that cases such as the present
one with very lengthy prison terms were extremely rare. The majority
of prisoners were in a position to accumulate a sufficient number of
insurance months on account of the periods worked outside prison. In
the present case the applicant had received unemployment benefits
and, since their expiry, had continued to receive emergency relief
payments.
Finally,
the Austrian legislature’s decision thus far not to affiliate
prisoners to the old-age pension scheme provided for in the General
Social Security Act did not mean that they did not enjoy any social
cover. Firstly, as stated above, they were covered by the
unemployment insurance scheme. Consequently, they received
unemployment benefits and, upon their expiry, emergency relief
payments. As a last resort, the system of social assistance provided
a means-tested minimum income for persons who could not cover their
basic needs by any other means. In sum, the Austrian legal system
provided for a differentiated and well-balanced solution taking into
account the interests of society at large on the one hand and the
interests of prisoners on the other hand.
B. The Court’s assessment
1. Applicability of Article 14 taken in conjunction
with Article 1 of Protocol No. 1
The
Court reiterates that Article 14 complements the other substantive
provisions of the Convention and the Protocols. It has no independent
existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions. The application of Article 14 does not necessarily
presuppose the violation of one of the substantive rights guaranteed
by the Convention. It is necessary but it is also sufficient for the
facts of the case to fall “within the ambit” of one or
more of the provisions in question. The prohibition of discrimination
in Article 14 thus extends beyond the enjoyment of the rights and
freedoms which the Convention and its Protocols require each State to
guarantee. It applies also to those additional rights, falling within
the general scope of any Article of the Convention, for which the
State has voluntarily decided to provide (see Stec and Others v.
the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01,
§§ 39-40, ECHR 2005 X; Andrejeva v. Latvia
[GC], no. 55707/00, § 74, ECHR 2009 ...; and, most
recently, Carson and Others v. the United Kingdom [GC], no.
42184/05, § 63, ECHR 2010 ...).
According
to the Court’s established case-law, the principles which apply
generally in cases under Article 1 of Protocol No. 1 are equally
relevant when it comes to welfare benefits. In particular, this
Article does not create a right to acquire property. It places no
restriction on the Contracting State’s freedom 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. If, however, a Contracting State has in force legislation
providing for the payment as of right of a welfare benefit –
whether conditional or not on the prior payment of contributions –
that legislation must be regarded as generating a proprietary
interest falling within the ambit of Article 1 of Protocol No. 1 for
persons satisfying its requirements (see Stec and Others
(dec.), cited above, § 54; Andrejeva, cited above, §
77; and Carson, cited above, § 64).
Moreover,
in cases such as the present one, concerning a complaint under
Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1 that the applicant has been denied all or part of a
particular benefit on a discriminatory ground covered by Article 14,
the relevant test is whether, but for the condition of entitlement
about which the applicant complains, he or she would have had a
right, enforceable under domestic law, to receive the benefit in
question (see Gaygusuz v. Austria, 16 September 1996, §
40, Reports of Judgments and Decisions 1996 IV, and
Willis v. United Kingdom, no. 36042/97, § 34, ECHR
2002 IV). Although Article 1 of Protocol No. 1 does not include
the right to receive a social security payment of any kind, if a
State does decide to create a benefits scheme, it must do so in a
manner which is compatible with Article 14 (see Stec and
Others (dec.), cited above, § 55, and Andrejeva,
cited above, § 79).
In
the present case the applicant, having reached pensionable age,
claimed an old-age pension which is due as of right on condition that
a minimum number of insurance months have been accumulated. The Court
considers that the social security legislation at issue creates a
proprietary interest falling within the scope of Article 1 of
Protocol No. 1. Applying the test whether the applicant would have
had an enforceable right to receive a pension had it not been for the
condition of entitlement he alleges to be discriminatory, the Court
notes that it is undisputed that the applicant had worked for some
twenty-eight years in prison without being affiliated to the old-age
pension system. His request for an old-age pension was refused on the
ground that he lacked the required minimum number of insurance
months. It follows that, had he been affiliated to the old-age
pension system for work performed in prison, he would have
accumulated the necessary number of insurance months and would
consequently have been entitled to a pension.
The
Government did not contest the applicability of Article 14 of the
Convention taken together with Article 1 of Protocol No. 1.
Nevertheless, they argued that the applicant’s income as a
prisoner was insufficient for him to pay contributions to the old-age
pension system: following deduction of the maintenance contribution,
his remuneration did not exceed the marginal earnings threshold below
which any employee was exempted from compulsory insurance under the
General Social Security Act. The Court considers that this argument,
which is itself intrinsically linked to the applicant’s
position as a prisoner, cannot invalidate the conclusion reached
above.
In
conclusion, the Court finds that the applicant’s claims fall
within the scope of Article 1 of Protocol No. 1 and the right to
peaceful enjoyment of possessions which it safeguards. This is
sufficient to render Article 14 applicable.
2. Compliance with Article 14 taken in conjunction with
Article 1 of Protocol No. 1
(a) General principles
The
Court has established in its case-law that only differences in
treatment based on an identifiable characteristic, or “status”,
are capable of amounting to discrimination within the meaning of
Article 14 (see Carson and Others, cited above, §
61). Discrimination means treating differently, without an objective
and reasonable justification, persons in relevantly similar
situations. “No objective and reasonable justification”
means that the distinction in issue does not pursue a “legitimate
aim” or that there is not a “reasonable relationship of
proportionality between the means employed and the aim sought to be
realised” (ibid.; see also Andrejeva, cited above, § 81;
and Stec and Others v. the United Kingdom [GC], no. 65731/01,
§ 51, ECHR 2006 VI).
The
Contracting States enjoy a certain margin of appreciation in
assessing whether and to what extent differences in otherwise similar
situations justify a different treatment. The scope of this margin
will vary according to the circumstances, the subject-matter and its
background. Thus, for example, Article 14 does not prohibit a member
State from treating groups differently in order to correct “factual
inequalities” between them; indeed, in certain circumstances a
failure to attempt to correct inequality through different treatment
may, in the absence of an objective and reasonable justification,
give rise to a breach of Article 14 (see Andrejeva, cited
above, § 82; Stec and Others, cited above, § 51; and
Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR
2000 IV).
Similarly,
a wide margin of appreciation is usually allowed to the State under
the Convention when it comes to general measures of economic or
social strategy. Because of their direct knowledge of their society
and its needs, the national authorities are in principle better
placed than the international judge to appreciate what is in the
public interest on social or economic grounds, and the Court will
generally respect the legislature’s policy choice unless it is
“manifestly without reasonable foundation” (see
Andrejeva, cited above, § 83; and Stec and Others,
cited above, § 52; Carson and Others, cited above, §
61; in the specific context of prisoners’ rights, see also
Dickson v. the United Kingdom [GC], no. 44362/04, § 78,
ECHR 2007 XIII).
(b) Application of these principles to the
present case
The
applicant complains of discrimination on account of his position as a
prisoner. Although being a prisoner is not one of the grounds
explicitly mentioned in Article 14, the list set out in this Article
is not exhaustive and includes “any other status” (or
“toute autre situation” in the French text) by
which persons or groups of persons are distinguishable from each
other. It has not been disputed in the present case that being a
prisoner is an aspect of personal status for the purposes of Article
14.
(i) Whether the applicant as a working
prisoner was in a relevantly similar situation to regular employees
The
Court will first examine whether, in respect of affiliation to the
old-age pension system under the General Social Security Act, the
applicant as a working prisoner was in a relevantly similar situation
to regular employees.
The
Government laid much emphasis on the differences in aim and nature
between prison work and regular employment. They underlined that
prison work served the primary aim of rehabilitation and pointed to
its obligatory nature, arguing that these features set the
applicant’s situation apart from that of ordinary employees.
For his part the applicant asserted that the obligatory nature of
prison work was not decisive in the present context and that the type
of work performed by prisoners did not differ in any way from the
work performed by ordinary employees.
The
Court observes that prison work differs from the work performed by
ordinary employees in many aspects. It serves the primary aim of
rehabilitation and resocialisation. Working hours, remuneration and
the use of part of that remuneration as a maintenance contribution
reflect the particular prison context. Moreover, in the Austrian
system prisoners’ obligation to work is matched by the prison
authorities’ obligation to provide them with appropriate work.
Indeed, that situation is far removed from a regular
employer-employee relationship. It could be argued that consequently,
the applicant as a working prisoner was not in a relevantly similar
situation to ordinary employees.
However,
in the Court’s view neither the fact that prison work is aimed
at reintegration and resocialisation, nor the obligatory nature of
prison work is decisive in the present case. Furthermore, the Court
considers that it is not decisive whether work is performed for the
prison authorities, as in the applicant’s case, or for a
private employer, although in the latter case there appears to be a
stronger resemblance to a regular employment relationship.
What
is at issue in the present case is not so much the nature and aim of
prison work itself but the need to provide for old age. The Court
finds that in respect of this the applicant as a working prisoner was
in a relevantly similar situation to ordinary employees. It therefore
has to examine whether the difference in treatment in respect of
affiliation to the old-age pension system under the General Social
Security Act was justified. In respect of affiliation to the health
and accident insurance scheme under the General Social Security Act,
however, the Court would agree that the applicant as a working
prisoner was in a different situation from ordinary employees since
prisoners’ health and accident care is provided by the State
pursuant to the Execution of Sentences Act. Equally, the Court would
accept that, as regards the payment of his pension, a prisoner who
has already reached pensionable age is in a different situation from
a pensioner who is not imprisoned, as a prisoner’s livelihood
is provided for by the prison authorities.
(ii) Whether the difference in treatment
pursued a legitimate aim
Regarding
the aim of the difference in treatment, the Government argued that
working prisoners often did not have the financial means to pay
social security contributions. Counting periods for which no, or at
least no meaningful, contributions had been made as insurance periods
giving rise to pension entitlements would create an imbalance between
working prisoners and persons outside the prison context and would
undermine the economic efficiency of the social security
institutions, which were already facing a strained financial
situation.
In
addition, a further aim, namely that of preserving the overall
consistency within the social security system, appeared to be implied
in the Government’s submissions. They argued that periods
worked in prison could not be counted as qualifying or substitute
periods, as according to the principles of Austrian social security
law, such periods could only serve to compensate for periods during
which no contributions were made by reason of a limited number of
socially accepted activities or situations (for example, school
education, childbirth, unemployment, illness, military or alternative
military service).
The
Court accepts that the aims relied on by the Government, namely
preserving the economic efficiency and overall consistency of the
old-age pension system by excluding from benefits persons who have
not made meaningful contributions, are legitimate ones.
(iii) Whether the difference in treatment
was proportionate
The
Court reiterates its well-established case-law that prisoners in
general continue to enjoy all the fundamental rights and freedoms
guaranteed under the Convention save for the right to liberty, where
lawfully imposed detention expressly falls within the scope of
Article 5 of the Convention. It is inconceivable that a prisoner
should forfeit his Convention rights merely because of his status as
a person detained following conviction (see Hirst v. the United
Kingdom (no. 2) [GC], no. 74025/01, §§ 69-70, ECHR
2005 IX, and Dickson, cited above, § 67).
Accordingly, a person retains his or her Convention rights on
imprisonment, so that any restriction on those rights must be
justified in each individual case. This justification can flow, inter
alia, from the necessary and inevitable consequences of
imprisonment or from an adequate link between the restriction and the
circumstances of the prisoner in question (ibid., § 68).
It is against this background that the Court will examine whether
there was a reasonable relationship of proportionality between the
non-affiliation of working prisoners to the old-age pension system
and the legitimate aims set out above. The core of the applicant’s
argument was that the Government had failed to provide a
justification for the difference in treatment. He asserted that the
main reason for prisoners’ inability to pay social security
contributions under the General Social Security Act was the State’s
own policy choice to withhold the major part of a prisoner’s
remuneration as a maintenance contribution.
The
Court observes that the issue of working prisoners’ affiliation
to the old-age pension system is closely linked to issues of penal
policy, such as the perception of the general aims of imprisonment,
the system of prison work, its remuneration and the priorities in
using the proceeds from it, but also to issues of social policy
reflected in the social security system as a whole. In short, it
raises complex issues and choices of social strategy, which is an
area in which States enjoy a wide margin of appreciation, whereas the
Court will only intervene when it considers the legislature’s
policy choice to be “manifestly without reasonable foundation”
(see the case-law cited in paragraph 89 above).
Given
the complexity of the issue, the Court finds that it cannot look at
the question of prisoners’ affiliation to the old-age pension
system in isolation but has to see it as one feature in the overall
system of prison work and prisoners’ social cover.
As
has been observed above, in the Austrian system prisoners are under
an obligation to work, while the prison authorities are obliged to
provide prisoners with appropriate work. The Court notes as a
positive feature of that system that more than 70% of the prison
population are currently working. Working hours are adapted to the
prison context, including certain favourable measures such as
counting time spent in therapeutic or social treatment as working
time up to five hours per week. Moreover, prisoners receive
remuneration for their work, of which 75% is, however, deducted as a
maintenance contribution. The Court notes in the first place that
collecting such a contribution is not in itself at variance with the
Convention (see Puzinas v. Lithuania (dec.), no. 63767/00,
13 December 2005, concerning a complaint under Article 1 of
Protocol No. 1 about the deduction of a 25% contribution from a
prisoner’s salary). While the percentage in the present case
appears rather high, it can nevertheless not be regarded as
unreasonable taking into account the general costs of maintaining
prisons and the fact that a prisoner’s entire livelihood,
including health and accident insurance, is provided for by the
State.
Turning
to prisoners’ social cover, the Court reiterates that when
defining the breadth of the margin of appreciation, a relevant factor
may be the existence or non-existence of common ground between the
laws of the Contracting States (see Petrovic v. Austria, 27
March 1998, § 38, Reports 1998 II).
The
Court observes that although there is no European consensus on the
matter, there is an evolving trend: in contrast to the 1987 European
Prison Rules, the 2006 European Prison Rules not only contain the
principle of normalisation of prison work but also explicitly
recommend in Rule 26.17 that “as far as possible prisoners
who work shall be included in national social security systems”
(see paragraph 56 above). However, the Court notes that the wording
used in Rule 26.17 is cautious (“as far as possible”) and
refers to inclusion in national social security systems in general
terms. Moreover, while an absolute majority of Council of Europe
member States provide prisoners with some kind of social security,
only a small majority affiliate prisoners to their old-age pension
system, some of them, like Austria, only by giving them the
possibility of making voluntary contributions. A minority do not
include prisoners in the old-age pension system at all (see paragraph
60 above).
It
is thus only gradually that societies are moving towards the
affiliation of prisoners to their social security systems in general
and to their old-age pension systems in particular. Austrian law
reflects this trend in that all prisoners are to be provided with
health and accident care. In addition, working prisoners have been
affiliated to the unemployment insurance scheme since 1 January 1994,
following the 1993 amendment of the Unemployment Insurance Act which
formed part of a broader reform of the system of execution of
sentences. As the Government explained, the reason for that decision
was that the legislature considered unemployment insurance to be the
most efficient instrument for assisting prisoners’
reintegration upon release as, in addition to payment of unemployment
benefits, it granted access to a whole range of training and
job-search facilities. At the time of the 1993 reform, affiliation to
the old-age pension system had been envisaged, but it has so far not
been put in place as a result of the strained financial situation of
the social security institutions.
Turning
to the applicant’s situation, the Court observes that he worked
for lengthy periods in prison (see paragraph 10 above). It follows
from the domestic authorities’ decisions in the present case
that his periods without insurance cover occurred between the 1960s
and the 1990s. The Court attaches weight to the fact that at the
material time there was no common ground regarding the affiliation of
working prisoners to domestic social security systems. This lack of
common ground was reflected in the 1987 European Prison Rules, which
did not contain any provision in this regard.
The
Government argued that very lengthy prison terms were rare and that,
consequently, the majority of prisoners had the possibility of
accumulating a sufficient number of insurance months for work
performed outside prison and were therefore not deprived of an
old-age pension. The Court does not consider it necessary to examine
this argument in detail. It would rather attach weight to the fact
that the applicant, although not entitled to an old-age pension, was
not left without social cover. Following his release from prison he
received unemployment benefits and subsequently emergency relief
payments, to which he was entitled on account of having been covered
by the Unemployment Insurance Act as a working prisoner. According to
his own submissions, the applicant currently still receives emergency
relief payments complemented by social assistance in the form of a
housing allowance. His monthly income currently amounts to
approximately EUR 720 and thus almost reaches the level of a minimum
pension, which is currently fixed at approximately EUR 780 for a
single person.
On
the basis of the facts of the present case and all the information
before it, the Court finds that the system of prison work and the
social cover associated with it taken as whole is not “manifestly
without reasonable foundation”. In a context of changing
standards, a Contracting State cannot be reproached for having given
priority to the insurance scheme, namely unemployment insurance,
which it considered to be the most relevant for the reintegration of
prisoners upon their release.
While
the respondent State is required to keep the issue raised by the
present case under review, the Court finds that by not having
affiliated working prisoners to the old-age pension system to date,
it has not exceeded the margin of appreciation afforded to it in that
matter.
It
follows that there has been no violation of Article 14 taken in
conjunction with Article 1 of Protocol No. 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION
The
applicant alleged that since he was not affiliated to the old-age
pension system for work performed as a prisoner, such work could not
be regarded as falling under the terms of Article 4 § 3 (a) and
therefore violated Article 4 § 2 of the Convention.
Article
4, in so far as relevant, reads as follows:
“1. No one shall be held in slavery or
servitude.
2. No one shall be required to perform forced
or compulsory labour.
3. For the purpose of this article the term
‘forced or compulsory labour’ shall not include:
(a) any work required to be done in the
ordinary course of detention imposed according to the provisions of
Article 5 of [the] Convention or during conditional release from
such detention;
...”
A. The parties’ submissions
The
applicant asserted that the prison work performed by him clearly
amounted to “forced or compulsory labour” within the
meaning of Article 4 § 2 of the Convention. He referred to ILO
Convention No. 29, according to which “forced or compulsory
labour” meant all “work or service which is exacted from
any person under the menace of any penalty and for which the said
person has not offered himself voluntarily”. In that
connection, he pointed out that prisoners in Austria were obliged to
work pursuant to section 44 of the Execution of Sentences Act and
that it was a punishable offence under sections 107(1) and 109 of
that Act if a prisoner refused to work.
While
conceding that the obligation to work as a prisoner could be
justified by Article 4 § 3 (a), he submitted that, by today’s
standards, prison work without affiliation to the old-age pension
system could not be regarded as “work required to be done in
the ordinary course of detention” within the meaning of that
provision. Consequently, the fact that he had to work as a prisoner
without being affiliated to the old-age pension system violated
Article 4 of the Convention.
For
their part, the Government argued that prison work fell outside the
scope of Article 4 as it was covered by the exception to the
prohibition of forced or compulsory labour contained in Article 4 §
3 (a). Consequently, the non-affiliation of working prisoners to the
old-age pension system did not raise an issue under Article 4 of the
Convention.
B. The Court’s assessment
1. General principles
The
Court reiterates that Article 4 enshrines one of the fundamental
values of democratic societies. Unlike most of the substantive
clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 §
1 makes no provision for exceptions and no derogation from it is
permissible under Article 15 § 2 even in the event of a public
emergency threatening the life of the nation (see Siliadin v.
France, no. 73316/01, § 112, ECHR 2005 VII, and Rantsev
v. Cyprus and Russia, no. 25965/04, § 283, ECHR 2010 ...
(extracts)).
Article
4 § 2 of the Convention prohibits “forced or compulsory
labour”. In interpreting Article 4, the Court has in previous
cases taken into account the relevant ILO Conventions, which are
binding on almost all of the Council of Europe’s member States,
including Austria, and especially the 1930 Forced Labour Convention
(see Van der Mussele v. Belgium, 23 November 1983, §
32, Series A no. 70, and Siliadin, cited above, § 115).
The
Court noted in those cases that there was in fact a striking
similarity, which was not accidental, between paragraph 3 of Article
4 of the Convention and paragraph 2 of Article 2 of ILO Convention
No. 29. Paragraph 1 of the last-mentioned Article provides that “for
the purposes” of the latter convention, the term “forced
or compulsory labour” means “all work or service which is
exacted from any person under the menace of any penalty and for which
the said person has not offered himself voluntarily” (see
Siliadin, cited above, § 116). The Court regarded this
definition as a starting-point for the interpretation of Article 4 of
the Convention but noted that sight should not be lost of the
Convention’s special features or of the fact that it was a
living instrument to be read “in the light of the notions
currently prevailing in democratic States” (see Van der
Mussele, cited above, § 32).
Article
4 § 3 (a) indicates that the term “forced or compulsory”
labour does not include “any work to be done in the ordinary
course of detention”.
The
Court has noted the specific structure of Article 4. Paragraph 3 is
not intended to “limit” the exercise of the right
guaranteed by paragraph 2, but to “delimit” the very
content of that right, for it forms a whole with paragraph 2 and
indicates what the term “forced or compulsory labour” is
not to include (“n’est pas consideré comme
‘travail forcé ou obligatoire’...”).
This being so, paragraph 3 serves as an aid to the interpretation of
paragraph 2. The four subparagraphs of paragraph 3, notwithstanding
their diversity, are grounded on the governing ideas of general
interest, social solidarity and what is normal in the ordinary course
of affairs (see Van der Mussele, cited above, § 38; see
also Karlheinz Schmidt v. Germany, 18 July 1994, §
22, Series A no. 291 B, and Zarb Adami v. Malta, no.
17209/02, § 44, ECHR 2006 VIII).
The
Court’s case-law concerning prison work is scarce. In one of
its early judgments the Court had to consider work a recidivist
prisoner was required to perform, his release being conditional on
accumulating a certain amount of savings. While accepting that the
work at issue was obligatory, the Court found no violation of Article
4 of the Convention on the ground that the requirements of Article 4
§ 3 (a) were met. In the Court’s view the work required
“did not go beyond what is ‘ordinary’ in this
context since it was calculated to assist him in reintegrating
himself into society and had as its legal basis provisions which find
an equivalent in certain other member States of the Council of
Europe” (see Van Droogenbroeck v. Belgium, 24 June
1982, § 59, Series A no. 50, with reference to De Wilde,
Ooms and Versyp v. Belgium, 18 June 1971, §§ 89-90,
Series A no. 12).
In
respect of prisoners’ remuneration and social cover, the Court
refers to the decision of 6 April 1968 by the European Commission of
Human Rights in the case of Twenty-one Detained Persons v. Germany
(nos. 3134/67, 3172/67, 3188-3206/67, Collection 27, pp.
97-116), in which the applicants, relying on Article 4, complained
that they were refused adequate remuneration for the work which they
had to perform during their detention and that no contributions under
the social security system were made for them by the prison
authorities in respect of the work done. The Commission declared
their complaint inadmissible as being manifestly ill founded. It
noted that Article 4 did not contain any provision concerning the
remuneration of prisoners for their work. Moreover, it referred to
its consistent case-law, which had rejected as being inadmissible any
applications by prisoners claiming higher payment for their work or
claiming the right to be covered by social security systems.
The
Court had to examine a similar complaint from a somewhat different
angle in the case of Puzinas (cited above). The applicant
complained under Articles 4 and 14 of the Convention and Article 1 of
Protocol No. 1 that the domestic social security legislation was
inadequate in that it did not permit prisoners to claim pension or
any other social benefits for prison work. The Court examined the
complaint in the first place under Article 1 of Protocol No. 1,
noting that it was undisputed that the applicant was not entitled to
any pension or social benefits under the relevant domestic
legislation. Finding that the applicant therefore had no possessions
within the meaning of Article 1 of Protocol No. 1 regarding his
future entitlement to or the amount of a pension, the Court rejected
the complaint under this provision, as well as under the other
provisions relied on, as being incompatible ratione materiae
with the provisions of the Convention.
2. Application to the present case
The
Court has to examine whether the applicant in the present case had to
perform “forced or compulsory labour” contrary to Article
4 of the Convention. The Court notes that the applicant was under an
obligation to work in accordance with section 44(1) of the Execution
of Sentences Act. Refusal to perform the work assigned to him
constituted an offence under section 107 of that Act, punishable
under section 109 by penalties ranging from a reprimand to solitary
confinement.
Taking
the definition of forced or compulsory labour contained in Article 2
§ 1 of ILO Convention No. 29 as a starting-point for the
interpretation of Article 4 § 2 of the Convention (see Van
der Mussele, cited above, §§ 32-34), the Court has no
doubt that the applicant was performing work “for which he had
not offered himself voluntarily under the menace of a penalty”.
While
this does not appear to be in dispute between the parties, they
differ in their view as to whether his work was covered by the terms
of Article 4 § 3 (a) of the Convention, which exempts “work
required to be done in the ordinary course of detention imposed
according to the provisions of Article 5 of the Convention”
from the term “forced or compulsory labour”. The
Government answered the question in the affirmative, concluding that
the work performed by the applicant as a prisoner did not fall within
the scope of Article 4. The applicant for his part asserted that
prison work without affiliation to the old-age pension system was not
covered by the provision in question. Therefore, it constituted
“forced or compulsory labour” in violation of Article 4 §
2.
The
Court has not yet had an opportunity to examine the question whether
Article 4 requires Contracting States to include working prisoners in
the social security system. It notes that the above-mentioned
decision of the Commission in Twenty-one Detained Persons v.
Germany (cited above), which answered the question in the
negative, dates from 1968. The Court will therefore have to assess
whether the position adopted in that decision is still valid in
respect of the work performed by the applicant as a prisoner without
being affiliated to the old-age pension system.
The
wording of the Convention does not give any indication as regards the
issue of working prisoners’ affiliation to the national social
security system. However, in establishing what is to be considered
“work required to be done in the ordinary course of detention”,
the Court will have regard to the standards prevailing in member
States (see Van Droogenbroeck, cited above, § 59).
The
applicant relies in essence on the Court’s doctrine that the
Convention is a living instrument which must be interpreted in the
light of present-day conditions (see, for instance, Tyrer v. the
United Kingdom, 25 April 1978, § 31, Series A no. 26;
Christine Goodwin v. the United Kingdom [GC], no. 28957/95, §
75, ECHR 2002 VI; and Van der Mussele, cited above, §
32). He appears to be arguing that European standards have changed to
such an extent that prison work without affiliation to the old-age
pension system can no longer be regarded as “work required to
be done in the ordinary course of detention”.
The
Court notes that the applicant worked for lengthy periods in prison,
starting in the 1960s. At that time the Commission, in its decision
in Twenty-one Detained Persons v. Germany (cited above), held
that Article 4 of the Convention did not require working prisoners to
be affiliated to the social security system. The 1987 European Prison
Rules remained silent on the issue of working prisoners’
affiliation to the social security system. The Court acknowledges
that, subsequently, significant developments have taken place in the
field of penal policy. These developments are reflected in the 2006
European Prison Rules, which contain the principle of normalisation
of prison work as one of the basic principles. More specifically in
the present context, Rule 26.17 of the 2006 Rules provides that “as
far as possible, prisoners who work shall be included in national
social security systems”.
However,
having regard to the current practice of the member States, the Court
does not find a basis for the interpretation of Article 4 advocated
by the applicant. According to the information available to the
Court, while an absolute majority of Contracting States affiliate
prisoners in some way to the national social security system or
provide them with some specific insurance scheme, only a small
majority affiliate working prisoners to the old-age pension system.
Austrian law reflects the development of European law in that all
prisoners are provided with health and accident care and working
prisoners are affiliated to the unemployment insurance scheme but not
to the old-age pension system.
In
sum, it appears that there is no sufficient consensus on the issue of
the affiliation of working prisoners to the old-age pension system.
While Rule 26.17 of the 2006 Rules reflects an evolving trend, it
cannot be translated into an obligation under Article 4 of the
Convention. Consequently, the obligatory work performed by the
applicant as a prisoner without being affiliated to the old-age
pension system has to be regarded as “work required to be done
in the ordinary course of detention” within the meaning of
Article 4 § 3 (a).
The
Court concludes that the work performed by the applicant was covered
by the terms of Article 4 § 3 (a) of the Convention, and did not
therefore constitute “forced or compulsory labour” within
the meaning of Article 4 § 2 of the Convention.
Consequently,
there has been no violation of Article 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN TOGETHER WITH ARTICLE 4
The
Court notes that the applicant relied mainly on Article 4 alone, but
also referred to Article 14, however without submitting any separate
arguments under Article 14 taken in conjunction with Article 4.
The
Court finds that its examination under Article 4 alone covers all
aspects of the issue raised by the applicant’s complaint. The
Court therefore considers that there is no need to examine the
applicant’s complaint under Article 14 of the Convention taken
together with Article 4.
FOR THESE REASONS, THE COURT
Holds, by ten votes to seven, that there has
been no violation of Article 14 of the Convention taken in
conjunction with Article 1 of Protocol No. 1;
Holds, by sixteen votes to one, that there has
been no violation of Article 4 of the Convention;
3. Holds, unanimously, that there is no need to
examine the complaint under Article 14 of the Convention taken in
conjunction with Article 4 of the Convention.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 7 July 2011.
Vincent Berger Jean-Paul Costa
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) Concurring
opinion of Judge De Gaetano;
(b) Joint
partly dissenting opinion of Judges Tulkens, Spielmann, Kovler,
Gyulumyan, Popović,
Malinverni and Pardalos;
(c) Partly
dissenting opinion of Judge Tulkens.
J.-P.C.
V.B.
CONCURRING OPINION OF JUDGE De
Gaetano
I
have voted with the majority under all three heads of the operative
part of the judgment. Nevertheless I cannot share fully the reasoning
embraced by the majority in connection with the first two heads.
The
majority have found that there was no violation of Article 14 taken
in conjunction with Article 1 of Protocol No. 1 because the
difference in treatment pursued a legitimate aim (paragraphs 96 to
98) and was proportionate (paragraphs 99 to 110). In my view the
Court need not have gone so far. Contrary to what is suggested in
paragraph 95, the General Social Security Act is not intended “to
provide for old age” generally, but only to make provision for,
inter alia, an old age pension for persons who are gainfully
employed. By no stretch of the imagination can the applicant be
considered to have been, while in prison, “gainfully employed”,
the notion of gainful employment implying a measure of contribution
to the national economy. In my view, therefore, the applicant as a
prisoner working in the prison kitchen or prison bakery, was simply
not in a relevantly similar situation to ordinary employees (a
point which is only hesitantly referred to in paragraph 93 and then
discarded). The position might have been different if he were
performing work (whether within the prison confines or without) for a
private person or company; or if he were engaged in producing things
which the prison authorities then sell on the open market in direct
competition with other producers; but that is not the case here.
As
for the finding of no violation of Article 4, the majority decision
seems to be based on the fact that there is “no sufficient
consensus on the issue of the affiliation of working prisoners to the
old-age pension system” (paragraph 132, and paragraph 131
passim). Again I fail to follow the reasoning. Work which is
excepted under Article 4 § 3 (because it is required to be done
“in the ordinary course of detention”) does not cease to
be so excepted because it is paid or unpaid, or because the prisoner
is or is not affiliated to a pension scheme. Nor do the European
Prison Rules (1987 and 2006) come into the picture in the instant
case. What one has to look at is the nature of the work performed by
the applicant. In this case the applicant was not made to stand by
the side of a public road to break stones with a sledgehammer –
he worked in the kitchen and bakery, which must surely rank as an
“ordinary” contribution to the work that must necessarily
be carried out in any community by its members, be that community
domestic, monastic or penal. In light of the above I cannot share the
reasoning in paragraphs 129 to 132.
JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS,
SPIELMANN, KOVLER, GYULUMYAN, POPOVIĆ, MALINVERNI AND PARDALOS
(Translation)
We do
not share the position of the majority that there has been no
violation of Article 14 of the Convention taken in conjunction with
Article 1 of Protocol No. 1 in the present case. Instead, we believe
that the applicant, who spent twenty-eight years in prison and worked
there for lengthy periods, was discriminated against in that he was
not affiliated to the old-age pension system on account of his status
as a prisoner.
First
of all, we would emphasise that we fully agree with the majority that
the applicant, as a working prisoner, was in a relevantly similar
situation to ordinary employees as regards the need for old-age
insurance cover (see paragraph 95 of the judgment). Here, the
judgment explicitly, and rightly, rejects the Government’s
contention that working prisoners were not in a similar situation to
other employees, notably because of the difference in the nature and
aims of prison work, which was mandatory and pursued the aims of
social reintegration and rehabilitation.
Where
we depart from the majority is in the assessment of whether the
difference in treatment to which the applicant was subjected in
respect of affiliation to the old-age pension system under the
General Social Security Act was justified in terms of the
requirements of the Convention. In our view, it was not.
With regard, firstly, to the legitimate aim
pursued by the difference in treatment, the judgment refers to
“preserving the economic efficiency and overall consistency of
the old-age pension system by excluding from benefits persons who
have not made meaningful contributions” (see paragraph 98).
Although it is of course reasonable to take economic realities into
account, it must nevertheless be acknowledged that there has been a
gradual trend in the Court’s recent case-law towards attaching
considerable importance to them, sometimes to the detriment of
fundamental rights (see N. v. the United Kingdom [GC],
no. 26565/05, 27 May 2008; Burden v. the United Kingdom
[GC], no. 13378/05, ECHR 2008 ...; and Carson and
Others v. the United Kingdom [GC], no. 42184/05, ECHR 2010 ...).
Furthermore, strictly speaking, the “economic well-being of the
country” found in Article 8 of the Convention does not appear
as such in Article 1 of Protocol No. 1, which refers more broadly to
the public interest.
Next,
with regard to the question of proportionality, the judgment
begins with an emphatic reminder of the Court’s
well-established case-law to the effect that “prisoners in
general continue to enjoy all the fundamental rights and freedoms
guaranteed under the Convention save for the right to liberty, where
lawfully imposed detention expressly falls within the scope of
Article 5 of the Convention. It is inconceivable that a prisoner
should forfeit his Convention rights merely because of his status as
a person detained following conviction” (see paragraph 99).
Nevertheless, in applying this approach to the present case, the
majority head off in a different direction.
The
judgment relies to a large extent on the margin of appreciation
which the State must be afforded, one of the relevant factors in
which may be the existence or non-existence of common ground between
the legal systems of the Contracting States (see paragraph 104 of the
judgment). We would observe that there is nowadays an evolving trend
in the Council of Europe’s member States towards the
affiliation of working prisoners to national social security systems.
The 2006 European Prison Rules reflect the position of all the
Council of Europe member States in terms of policy.
On the basis of Rules 64 and 65 of the 1987 European Prison Rules,
they lay down the principle of normalisation of detention conditions
as the basis of policy on execution of sentences.
They explicitly recommend that “as far as possible, prisoners
who work should be included in national social security systems”
(Rule 26.17). This trend is gradually reducing the margin of
appreciation which States may enjoy in this area. While they still
retain a choice in respect of the policies to be implemented and the
timing of any legislative changes (see Petrovic v. Austria, 27
March 1998, §§ 36-42, Reports of Judgments and Decisions
1998 II, and Stec and Others v. the United Kingdom
[GC], no. 65731/01, §§ 63-65, ECHR 2006 VI), they
cannot disregard such a trend altogether.
We
are struck by the lack of flexibility in the system applied in the
applicant’s case. Section 4(2) of the General Social Security
Act, as interpreted by the domestic courts, provides for the
automatic exclusion of working prisoners from the compulsory
old-age pension system. The applicant thus worked for twenty-eight
years as a prisoner without ever having been affiliated to the
system. Besides the consideration that working prisoners are in a
different situation from ordinary employees in that they do not
perform work on the basis of an employment contract but by virtue of
a statutory obligation, the exclusion is mainly based on the premise
that prisoners do not have the necessary means to pay contributions
to the old-age pension system. However, this situation is a result of
the State’s deliberate policy choice to withhold 75% of a
working prisoner’s remuneration as a maintenance contribution,
a percentage which is particularly high.
Prisoners are thus in a sense “condemned” to be unable to
pay sufficient contributions.
While
deducting a maintenance contribution from a prisoner’s
remuneration is not in itself at variance with the Convention (see
Puzinas v. Lithuania (dec.), no. 63767/00, 13 December
2005), the high percentage of this contribution in the Austrian
system leaves virtually no room for contributions to the social
security system, apart from a small percentage for the payment of
contributions to the unemployment insurance scheme. In our view,
there is a lack of balance between the possible public interest in
ensuring that prisoners contribute towards the costs incurred by the
community as a result of their imprisonment and the individual
prisoner’s interest in providing for old age. Nowadays, because
of the long-term sentences being imposed in many countries, the
presence of an older prison population is a new sociological reality
which will necessarily raise the question of old-age pensions for
such prisoners at the time of their release. The applicant’s
case is a good example. He has spent twenty-eight years of his life
in prison and was released at the age of sixty-six.
Admittedly,
the applicant was not left without any social cover. Since the 1993
amendment of the Unemployment Insurance Act, working prisoners have
been affiliated to the unemployment insurance scheme, which the
legislature considered at that time to be the most effective
instrument for encouraging prisoners’ reintegration after
release. However, as the Government acknowledged, the Austrian
legislature itself regarded this amendment as only a first step
towards full integration of working prisoners into the social
security system (see paragraph 78 of the judgment). Yet despite that
intention, the issue of working prisoners’ affiliation to the
old-age pension system has not been discussed subsequently.
From
a judicial perspective, the applicant brought his case before the
courts in 2001 and the Supreme Court gave judgment in 2002. In
finding that the non-affiliation of working prisoners to the old-age
pension system was not discriminatory, the domestic courts limited
themselves to referring to the Supreme Court’s leading case on
the issue, a judgment delivered in 1990 – more than twenty
years ago now. They did not consider it necessary to re-examine
whether the non-affiliation of working prisoners was still
proportionate to any legitimate aims pursued, nor did they make an
assessment of the applicant’s particular circumstances.
Regarding
the applicant’s current situation, he continues to receive
emergency relief payments (to which he is entitled on account of
having been covered by the Unemployment Insurance Act as a working
prisoner), supplemented by social assistance for persons who are
otherwise unable to provide for their basic needs. However, in our
view, neither the emergency relief payments nor the social assistance
can be compared to an old-age pension granted on the basis of the
number of years worked and the contributions paid. The former
constitute assistance, whereas the latter is a right. The
difference is significant in terms of respect for human dignity.
Social security forms an integral part of human dignity. In addition,
it is now acknowledged in modern penology that social rehabilitation
implies the development of personal responsibility. Lastly, as
regards access to social services, the European Committee of Social
Rights has highlighted former prisoners as a vulnerable group.
In
these circumstances, we consider that the non-affiliation of working
prisoners to the old-age pension system creates a distinction between
prisoners and ordinary employees, which risks producing – and
in the applicant’s case actually produces – a long-term
effect going well beyond the legitimate requirements of serving a
particular prison term. Some writers have had no hesitation in
referring to this as double punishment.
Such a situation sits ill with the idea that prisoners should not
suffer any restriction of their rights beyond the necessary and
inevitable consequences of imprisonment. Moreover, it does not serve
the aim of rehabilitation, on which, by the Government’s own
assertion, the system of prison work is based.
The Grand Chamber’s judgment does, however,
leave an opening for the future. The Grand Chamber takes note of the
context of changing standards and finds that while, as matters
currently stand, the respondent State has not exceeded the margin of
appreciation afforded to it in this area by not affiliating working
prisoners to the old-age pension system, it is called upon to keep
the situation under review (see paragraph 110 of the judgment).
Prisoners, it must be emphasised, have been recognised by the Court
itself as persons in a vulnerable situation (see, for example, Algür
v. Turkey, no. 32574/96, § 44, 22 October 2002; Mikadze
v. Russia, no. 52697/99, § 109, 7 June 2007; Renolde
v. France, no. 5608/05, § 93, 16 October 2008; and
Aliev v. Georgia, no. 522/04, § 97, 13 January 2009).
Today, the right to an old-age pension forms part of the social pact
between citizens and the State.
PARTLY DISSENTING OPINION OF JUDGE TULKENS
(Translation)
I
consider that in this case there were sound reasons for finding a
violation of Article 4 of the Convention, which prohibits forced
labour. This position is all the more compelling as the Court has
found no violation of Article 1 of Protocol No. 1 taken in
conjunction with Article 14 of the Convention.
Admittedly,
Article 4 § 3 (a) specifies that “forced or compulsory
labour” does not include any work required to be done in the
ordinary course of detention (“tout travail requis
normalement d’une personne soumise à la détention”).
However, this provision, incorporated in the Convention in 1950, must
be interpreted in the light of the present-day situation. More
specifically, the concepts used in the Convention are to be
understood in the sense given to them by democratic societies today.
It
has long been the Court’s position that “[g]iven that
[the Convention] is a law-making treaty, it is ... necessary to seek
the interpretation that is most appropriate in order to realise the
aim and achieve the object of the treaty, not that which would
restrict to the greatest possible degree the obligations undertaken
by the Parties”.
Such an interpretation is guided by the Preamble to the Convention,
which refers to the maintenance and further realisation of rights and
freedoms. “Maintenance” requires the Court to ensure in
particular that the rights and freedoms set out in the Convention
continue to be effective in changing circumstances. “Further
realisation” allows for a degree of innovation and creativity,
which may extend the scope of the Convention guarantees. Moreover, in
the Golder judgment the Court provided the following
clarification regarding the teleological method: “This is not
an extensive interpretation forcing new obligations on the
Contracting States: it is based on the very terms of the first
sentence of Article 6 § 1 read in its context and having
regard to the object and purpose of the Convention, a law-making
treaty.”
The same reasoning can be followed in relation to Article 4 § 3
(a).
This
approach has had natural consequences. The Court subsequently
developed the idea/principle of effective protection of the rights
enshrined in the Convention.
Since then, the effectiveness theory has become the basis for the
protection of the Convention rights and freedoms. These rights must
be given “their full scope” since the purpose of the
Convention is to guarantee rights that are not theoretical or
illusory but practical and effective.
In
relation to Article 4 of the Convention, the judgment rightly notes
that the Court’s case-law concerning prison work is scarce.
Indeed, in the sphere of prisoners’ remuneration and social
cover, the only relevant decision is that of 6 April 1968 by the
European Commission of Human Rights in the case of Twenty-one
Detained Persons v. Germany (nos. 3134/67, 3172/67,
3188-3206/67, Collection 27, pp. 97-116), in which the application
was declared manifestly ill-founded.
More
than forty years have passed since the above-mentioned
inadmissibility decision and prison law – which at the time was
virtually non-existent – has developed considerably during this
period. Traditionally regarded as an area outside the law, prisons
have gradually opened up to fundamental rights, to the benefit not
only of prisoners but also of the prison authorities and their staff.
Thus, regarding the same issue of prisoners’ remuneration which
formed the subject of the Commission’s 1968 inadmissibility
decision referred to in the previous paragraph, it is interesting to
note that thirty years later, in a judgment of 1 July 1998, the
German Federal Constitutional Court held, on the contrary, that since
the State had a constitutional duty to promote prisoners’
social rehabilitation and had chosen compulsory prison work as one of
the means of achieving that aim, it had to ensure appropriate
remuneration for such work, which could not yield the expected
results unless it was properly rewarded.
Although the Constitutional Court did not specify the amount that
would constitute an appropriate reward, it held that it was
unconstitutional to pay prisoners low wages that bore no relation to
the value of the work performed or to the minimum wage in the outside
world. The guiding principle is that of human dignity.
Similarly, Rule 26.10 of the 2006 European Prison Rules emphasises
the need for equitable remuneration for prisoners.
In
Austria, as we have seen, prisoners are obliged to work pursuant to
section 44 of the Execution of Sentences Act; furthermore, refusal to
work constitutes an offence under sections 107(1) and 109 of the same
Act, carrying penalties ranging from a reprimand to solitary
confinement. This situation thus clearly entails – as was not
disputed – work under the menace of a penalty within the
meaning of ILO Convention No. 29, and hence forced or compulsory
labour.
In
such a context, can it really still be maintained in 2011, in the
light of current standards in the field of social security, that
prison work without affiliation to the old-age pension system
constitutes work that a person in detention may normally be
required to do? I do not think so. This, in my view, is the
fundamental point. Nowadays, work without adequate social cover can
no longer be regarded as normal work. It follows that the exception
provided for in Article 4 § 3 (a) of the Convention is not
applicable in the present case. Even a prisoner cannot be forced
to do work that is abnormal. In the examination of the case under
Article 14 in conjunction with Article 1 of Protocol No. 1, moreover,
the judgment notes explicitly that “the applicant as a working
prisoner was in a relevantly similar situation to ordinary employees”
(see paragraph 95).
If
we are to give any meaning to the famous phrase from the 1984
Campbell and Fell judgment that “justice cannot stop at
the prison gate”,
it is important to take account of developments in the member States,
as reflected, for example, in the 2006 European Prison Rules, which
refer to normalisation of prison work as one of the basic principles
in this sphere and one which has guided reforms in certain member
States.
In
finding no violation of Article 4 of the Convention, the judgment
relies to a decisive extent on the lack of a sufficient consensus
among member States on the issue of working prisoners’
affiliation to the old-age pension system (see paragraph 132 of the
judgment). This argument, to my mind, raises two difficulties. The
first is of a factual nature. Nowadays, with the development of
long-term prison sentences, the profile of prisoners has changed and
the reality is that prisons house increasing numbers of older
inmates. Whereas for younger prisoners, the requirements of social
rehabilitation encompass health and accident cover and affiliation to
the unemployment insurance scheme, for older prisoners they also
include the guarantee of an old-age pension. The second difficulty is
of a legal nature. What role is there in the present case for a
European consensus, the main function of which is to determine the
extent of the margin of appreciation? The flexibility inherent in the
margin of appreciation is admittedly an essential factor, but, as the
Court has frequently repeated, it must go hand in hand with European
supervision. Such supervision was lacking in the present case.
