Abstract
This article discusses recent developments concerning the right to minimum subsistence as a matter of property protection under the European Convention on Human Rights. It starts with two recent cases: Bélané Nagy v. Hungary and Baczúr v. Hungary. In its judgments in these cases, the European Court of Human Rights emphasised that, in determining whether an interference with a benefit is proportional, an important consideration is whether the individual still receives a subsistence minimum. It moreover held that a right to a (minimum) benefit can exist even if the conditions for receiving this benefit have not been met. Read together, Bélané Nagy and Baczúr flag an increasingly social interpretation of the property right enshrined in Article 1 of the First Protocol to the ECHR involving positive obligations and a focus on the neediest. On a closer look, however, the Court’s interpretation is not a very straightforward one. Judgments rendered after Bélané Nagy and Baczúr show that, although there is a clear trend to protect claimants’ means of subsistence, the relationship between property and a right to such means remains opaque, and the potential of a property right to guarantee the latter, limited. In this article, I present the recent case law against the background of the increasing significance of Article 1 P1 in the field of social security as well as the obstacles to protecting a subsistence minimum. I will delineate the questions that promise to haunt the Court in the cases to come and explore some of the answers it could formulate in this regard. It is argued that a positive right to a subsistence minimum is, for various reasons, unlikely to be developed as a matter of property protection under the Convention.
Keywords
Introduction
Social security cases are nothing new to the European Court of Human Rights (ECtHR; Court). Although the first social security cases were brought to the Court in the 1970s, 1 its case law on this topic has taken off, particularly over the past twenty years or so. Complaints concerning pensions and other benefits and allowances are generally reviewed on the basis of Article 1 of Protocol No. 1 to the European Convention on Human Rights (ECHR; Convention). 2 This provision guarantees the right to protection of property (‘to the peaceful enjoyment of his possessions’). 3 Especially for a supranational court, social security is a sensitive topic to deal with per se. 4 Doing so by means of property rights protection in some cases arguably complicates the matter. First, there is the issue of how far a court can go in deciding upon, and interfering with, choices in regard to social security made by other (democratically elected) authorities. Secondly, in the case of a supranational court interpreting rights that are ‘civil and political’ rather than ‘socio-economic’ in character, even more caution is required. And thirdly, in the context of property rights, the question is also raised as to what the link is between property rights and social security claims. In other words, what is the role of a fundamental right to the protection of property in relation to national social security systems involving highly politicised decision-making about who receives and pays what? Does protection of ‘possessions’ imply that only existing possessions are protected, or should this human right today include a positive right to obtain at least a subsistence minimum 5 from the state?
This question might seem far-fetched, for how can we speak of ‘property’ when what is concerned is the right to receive something (without doing anything in return)? Recent developments in the case law of the ECtHR, however, show that this is exactly the point which this Court’s interpretation of the right to protection of property has reached. 6 In 2005, the Court concluded that ‘in the modern democratic state’, regardless of whether contributions are paid, many domestic legal systems provide for benefits to be paid ‘as of right’, the importance of which should be reflected by holding Article 1 P1 applicable. 7 After that, the Court’s social security case law developed rapidly. 8 A generous interpretation of ‘possessions’ has not generally resulted in applicants before the ECtHR obtaining a judgment in their favour. Still, the review of social security cases has led the Court to reflect on numerous national social measures taken in times of austerity or as a matter of majority will. 9 It has dealt with cases concerning pension and other benefit cuts, 10 access to social security regimes, 11 and alleged discrimination in the provision of social benefits, 12 developing a web of standards no legislative or executive authority in a Council of Europe (CoE) Member State today can ignore.
In order to be able to claim the existence of a property right, the conditions for receiving a particular benefit must be met. 13 Alternatively, an applicant must allege that his non-fulfilment of the relevant criteria results from the discriminatory character of the requirements. 14 However, the Court has come to suggest that, when this is not the case, there may still be a legitimate expectation to receive a social benefit. In this context, it appears relevant that the requested benefit is one that secures the means of subsistence. 15 The Court’s reasoning in this regard corroborates its increasing tendency to emphasise the importance of the ‘essence’ of rights and the fact that these deserve extra protection. 16 Yet it can hardly be argued that a right to minimum subsistence forms the essence of a right to property, at least not as it was traditionally understood. 17 Is the Court actually moving in the direction of recognising a social right to a subsistence minimum under the header of protection of property, or are there barriers that limit its possibilities in this regard?
This is not only a question the ECtHR is struggling with, it also is the question I will take up in this article, which is structured as follows. First, I introduce two important, recent cases that together can be read as paving the way for the recognition of a right to minimum subsistence under Article 1 of Protocol No. 1. These cases are Bélané Nagy v. Hungary and Baczúr v. Hungary and deal respectively with the reduction and non-granting of a Hungarian disability benefit. The minimum social protection the Court offers here appears meaningful beyond the facts of these cases. Baczúr and Bélané Nagy are then discussed in light of the Court’s social security case law in order to obtain a clearer image of the chances of, as well as limitations to, property protection in this field. This analysis mainly focuses on judgments rendered after the two cases central to this article, to underline how the ECtHR is still leaving fundamental questions as to the relation between property rights and social protection unanswered. Finally, I argue that, although the case law provides evidence that the Court is taking the protection of a right to minimum subsistence increasingly seriously, obstacles remain when it comes to securing a positive and durable right to a subsistence minimum, at least where Article 1 P1 is concerned. Even though other ECHR norms seemingly provide a promising alternative, in order to ensure the provision of a social minimum throughout the CoE, we must put our hopes elsewhere.
Recent case law on property rights and minimum social benefits
In this section, I introduce two recent Strasbourg cases that, read together, suggest a development towards the protection of a right to minimum subsistence on the basis of Article 1 P1 of the Convention. A reason for focusing on Bélané Nagy v. Hungary 18 and Baczúr v. Hungary 19 is that both cases concern the same legislative change and final judgments were rendered only a few months after one another. Whereas, at first glance, the protection of (existing) possessions may seem to have little to do with the right to a subsistence minimum, both cases suggest that this link is all but far-fetched. Fundamental rights review by courts consists of two stages, that is, when relative rather than absolute rights are concerned. 20 At the first stage, a court determines whether the complaint falls within the scope of the article invoked. If this is the case, it then moves on to the second stage, when it considers whether the interference with this right was justified or not. 21 Although the case of Bélané Nagy centres on the first stage, and is without doubt more significant than Baczúr, not least because it involves a Grand Chamber judgment, I start this discussion with Baczúr and the way the Court explicitly takes into account the protection of a subsistence minimum at the second stage of reviewing the interference. After that, I embark on the more contentious issue at stake in Bélané Nagy, namely that the Court also opts for a social interpretation of what falls within the reach of the ‘possessions’ protected by Article 1 P1. These points will then be analysed in light of broader case law developments in the following section.
Baczúr v. Hungary
Mr Baczúr had been working as a tax inspector until 1996 when he applied for an early retirement pension on account of disability. Due to his 67 per cent loss of capacity to work, he was granted a disability pension. In 2008, the method for assessing the level of disability was changed with the result that he was now considered only 50 per cent disabled. This made him eligible for a (lower) monthly rehabilitation allowance, which was granted for a limited period. On the expiry of this allowance, in June 2012, Mr Baczúr received approximately EUR 510. Meanwhile, a new disability benefit had replaced the disability pension he had received until 2008. Baczúr applied for this benefit and his medical condition was assessed as 46 per cent disabled, which meant that he was again considered fit for rehabilitation and resulted in a monthly allowance of approximately EUR 140, which later became EUR 180 when on appeal his rehabilitation was no longer recommended. Mr Baczúr sought judicial review of this decision, but his Kúria petition was rejected because he had not relied on any particular breach of the law.
Before the ECtHR, Mr Baczúr complained that the decrease in his monthly allowance violated Article 1 of Protocol No. 1 as well as Articles 6 (fair trial), 8 (respect for private life), 13 (effective remedy) and 14 (non-discrimination) of the Convention. The Court’s Fourth Section decided to examine the case under the right to protection of property. With regard to the applicability of this provision, i.e. the question of whether there was a property right that could be interfered with, the ECtHR held the government’s objection that the complaint was incompatible ratione materiae with the Convention, was ‘so closely linked to the substance of the applicant’s complaint that it should be joined to the merits’. 22 As to the merits, Mr Baczúr argued that, given his permanent state of his health, he could legitimately expect an adequate benefit from the state. While accepting the lawfulness of the measures to overhaul the system of disability benefits, he was of the view that he had suffered a disproportionate burden as he lost – for one and a half years, until the legislation was amended – more than two-thirds of his benefit. According to the government, there had not been an interference with the applicant’s property rights since ‘there was no basis in domestic law for him to claim the continuous payment of an unchanged disability benefit’. Even if the Court would recognise a proprietary claim, the government argued that the measures had to be considered proportionate because of their limited duration of 18 months, after which the amendment ‘resulted in partial compensation’. According to the government, there had not been a violation since the applicant had continued to receive a benefit in the first place, and because ‘the amount of that benefit had exceeded one-third of his previous benefit and almost equalled 60 per cent of the minimum subsistence income relevant in the years 2012 and 2013’. 23
In the assessment that followed, the Court reiterated that, in relation to social benefits, ‘for the recognition of a possession consisting in a legitimate expectation, the applicant must have an assertible right which,…may not fall short of a sufficiently established, substantive proprietary interest under the national law’. 24 The Court highlighted that, since 1996, Mr Baczúr had been continuously entitled, albeit under different legal regimes, to a disability benefit. It concluded in regard to the applicability of Article 1 P1 that his claim for a benefit during the period in question constituted a ‘sufficiently established, substantive proprietary interest under the national law…This holds true, irrespective of whether the benefit in a given period was granted for a definite or an indefinite duration, since the underlying medical condition remained constant’. 25 Because his benefit had been reduced to approximately one-third of what Mr Baczúr had received before, his property right had been interfered with.
The ECtHR noted that the measure undisputedly had a basis in national law, and repeated that, if a person enters a state social security system, this does not mean that the system cannot be changed either with regard to eligibility conditions or to the quantum of the benefit. 26 It accepted ‘the possibility of amendments to social-security legislation which may be adopted in response to societal changes and evolving views on the categories of persons who need social assistance and also the evolution of individual situations’. 27 Yet the state’s wide margin of appreciation does not preclude a proportionality test. This test asks whether the interference imposed an excessive individual burden on Mr Baczúr, in light of the specific context of a social security scheme. Important in this regard is whether his right to derive benefits from the scheme in question has resulted in ‘the impairment of the essence of his pension rights’. 28 According to the Court, ‘a two-thirds reduction, as in the present case, undoubtedly falls into this latter category’. 29 Although the government had mentioned this as part of their justification, the Court found it problematic that the benefit received was barely 60 per cent of the minimum subsistence level at the time. This was especially worrisome as Mr Baczúr did not seem to have other significant income and belonged to a vulnerable group, namely the disabled. 30 Hence, the measure had not struck a fair balance because there was no reasonable relation of proportionality between the impugned measure and the aims pursued therewith. Notwithstanding the wide margin granted to the state in this field, the applicant was confronted, in the relevant period, with an excessive individual burden and thus Article 1 P1 had been violated.
Bélané Nagy v. Hungary
In Baczúr, the Court found that a temporary reduction of a disability benefit can violate Article 1 P1. Important for this conclusion was the fact that the essence of the applicant’s pension rights had been interfered with, and that he received less than 60 per cent of the minimum subsistence level in Hungary at the time. That the benefit was a new one – and one could say that there was hence no actual reduction of an existing claim – was not material in this regard. The tendency of the Court to recognise a right to a subsistence minimum follows a fortiori from the case of Bélané Nagy v. Hungary. This case concerned the same new disability law replacing the earlier disability pension as in Baczúr, although the situation of the applicant was significantly different. A close look at Bélané Nagy, that is, in particular at the Grand Chamber judgment from December 2016, upholding the 2015 Chamber judgment, 31 will illustrate the significance of the Court’s finding of a violation in both cases. It also will uncover the fundamental questions as to the meaning and role of the human right to property protection in relation to social security that will continue to haunt the Court in the cases to come.
Unlike Mr Baczúr, Ms Bélané Nagy was not in receipt of a rehabilitation benefit when the new legislation regulating disability allowances came into force. When the method for calculating the level of disability was altered, in 2010 Ms Bélané Nagy lost her entitlement to the disability pension she had been receiving since 2001. After that, she underwent several health assessments and, at the end of 2011, her disability was assessed at such a level that it was recommended that she was entitled to rehabilitation allowance. This allowance was never granted. In 2012 Ms Bélané Nagy applied for a disability allowance under the new law. This law had introduced additional eligibility criteria: to be eligible a person had to have at least 1,095 days covered by social security in the five years preceding his application. This requirement could be avoided if the person had been in receipt of a disability pension or rehabilitation allowance on 31 December 2011, that is, when the new legislation came into force. Failing to meet these eligibility criteria, Ms Bélané Nagy’s application was dismissed, although the necessary level of disability (50 per cent) was now met.
In brief, because Ms Bélané Nagy had been covered for 947 and not 1,095 days in the relevant period, under the new law there was no possibility for her to receive a disability benefit. The support she was left with consisted of a monthly housing allowance of less than EUR 20. Her request for a basic welfare allowance was denied because she did not meet the statutory requirements.
Like the Chamber in 2015, the Grand Chamber in December 2016 ruled that Article 1 P1 had been violated. Compared to the case of Baczúr, the ‘disproportionality’ or the ‘excessiveness’ of the individual burden in this case seems obvious. According to the Grand Chamber, ‘the deprivation of the entirety of a pension is likely to breach the provisions of Article 1 of Protocol No. 1 and…, conversely, reasonable reductions to a pension or related benefits are likely not to do so’. 32 However, in assessing the proportionality of an interference, all relevant circumstances – such as the discriminatory nature of the measure, the absence of transitional measures, the arbitrariness of the conditions, and the applicant’s good faith – have to be taken into account. As in Baczúr, the Court considered the measure taken to be lawful as well as pursuing ‘the communal interest in protecting the public purse, by means of rationalising the system of disability-related social-security benefits’. 33 Yet Ms Bélané Nagy was left with nothing – even though her cover was only 148 days short of the required period. According to the ECtHR, ‘[t]his element gains particular importance in view of the fact that the applicant did not have any other significant income on which to subsist’. 34 Also the fact that she belonged to the vulnerable group of disabled persons, and had obvious difficulties pursuing gainful employment, played a role. The Court concluded that the legislation, in the circumstances of the case, failed to strike a fair balance between the individual and general circumstances. Ms Bélané Nagy was forever deprived of any entitlement despite acting in good faith and cooperating with the authorities, and thus a ‘reasonable relation of proportionality’ between aim and means was lacking.
A discussion of Bélané Nagy, though, is not complete without addressing the issue of the applicability of Article 1 P1. Was there a proprietary interest in this case to start with? Indeed, much more than in Baczúr, the Chamber and Grand Chamber’s judgments in Bélané Nagy turned on the interpretation of the prima facie protection offered by the right to protection of property. Whereas proportionality analysis clearly hinges on the particular circumstances of a case, the issue of what counts as a ‘possession’ for the purposes of applying Article 1 P1 is of more general relevance, that is, the Court’s conclusions in this regard reach beyond the scope of a single case.
What was contentious here was whether Ms Bélané Nagy had a proprietary interest regardless of the fact that she did not meet the conditions of the new legislation and had no clear-cut legitimate expectation on the basis of a benefit she received at the time of filing her request. The 2010 revocation of her disability pension could not be reviewed directly, as an appeal concerning this decision had not been lodged with the Court within six months after it had become final. Like the Court in 2015, the Grand Chamber dealt at length with the applicability of Article 1 P1. It repeated that this provision applies to existing possessions and does not create a right to acquire property. Alternatively, one may have a legitimate expectation that enjoys the protection of Article 1 P1. In the words of the Grand Chamber: ‘A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of the failure to fulfil the condition…At the same time, a proprietary interest recognised under domestic law – even if revocable in certain circumstances – may constitute a “possession” for the purposes of Article 1 of Protocol No. 1’.
35
In the present case, given that, in 2001, Ms Bélané Nagy had fulfilled both the contribution and the health criterion, that is, her level of disability at that point was considered severe enough, the question essentially was ‘whether a legitimate expectation still existed on 1 January 2012, when the legislature changed the contribution criteria for the disability benefit, effectively invalidating the legal effect of the fact that she had already once fulfilled the contribution conditions’. 39 This question could not be answered solely on the basis of the 2012 legislation. After all, the complaint specifically concerned the change in the law and thus it could not automatically be held that not meeting the criteria meant that there had been no interference.
According to the Court, ‘[t]he change in the law effectively imposed on a certain category of insured persons, including the applicant, a condition whose advent had not been foreseeable during the relevant potential contributory period and which they could not possibly satisfy once the new legislation came into force – a combination of elements which is ultimately difficult to reconcile with the rule of law’. 40 It moreover considered relevant that, between the discontinuation of the applicant’s disability pension and 2012, the applicant continued to be part of the social security system and fulfilled the length-of-service requirement. She cooperated with the authorities during this time, for example by undergoing reassessments of her health condition. Also, the applicant’s 23 years and 71 days of service far exceeded the five-year minimum period that, under the European Code of Social Security and ILO Conventions nos. 102 and 108, warranted at least a reduced invalidity benefit. She had, moreover, been recommended for rehabilitation and the accompanying allowance on 13 December 2011. Had the authorities implemented this recommendation, the applicant’s situation under the new law would have been different.
Altogether, the Court held that the fact that her contribution record was recognised as sufficient at the latest in 2001 meant that she could ‘reasonably rely on the promise of the law that she would be entitled to disability benefits whenever she satisfied the applicable health-related conditions’. 41 According to the Court, when she applied for a disability allowance in 2012, Ms Bélané Nagy ‘did no more…than seek to avail herself once again of an existing legitimate expectation to be provided with a social-security benefit, rather than pursuing the “acquisition” of a “possession”’. 42 Article 1 P1 was thus applicable.
If Ms Bélané Nagy was considered to have a possession or at least a legitimate expectation, the conclusion that her right was disproportionately interfered with seems indisputable. Indeed, the gist of the Strasbourg Court’s argumentation here concerned the fact that there was a protected interest under Article 1 P1 in the first place. This conclusion was doubted in the dissenting opinion attached to the judgment of no less than seven Judges (the judgment was supported by a nine to eight majority), who highlighted the lack of an ‘asset’ that is needed for there to be a proprietary interest. 43 Moreover, in his concurring opinion, Judge Wojtyczek criticised the reasoning of the majority, which in his view failed to deal with arguments against the applicability of Article 1 P1 and more generally concluded that ‘[t]he quality of reasoning in the instant case does not reach the level of diligence attained in the most advanced States’. 44
Although supported by the smallest possible majority, 45 the Grand Chamber ruling in Bélané Nagy can form the basis of a whole new tier of social security case law, namely that in which the right to a (minimum) social benefit as a matter of property protection is not dependent on there being a national legal provision from which this right can be inferred. In other words, it opens Strasbourg’s gates for situations in which the legislation does not grant a benefit and thereby a possession, but the (accumulated) circumstances nevertheless amount to a legitimate expectation and hence property protection. I put ‘minimum’ in between brackets here, as it is a matter of debate whether this reasoning only applies in cases concerning minimum social benefits or where there is a lack of a subsistence minimum. 46 Besides, it can be asked whether the argumentation only applies when contributions have been paid (for a number of years). It is to these and other questions raised by the two judgments outlined here that I turn to in the remainder of this article.
Trends in perspective
The two cases discussed in the previous section suggest that one may have a property rights claim when the request for a minimum subsistence benefit fails. Also, a violation is likely to be found when the benefit received does not meet the relevant minimum subsistence level. This signals a social reading of the right to protection of property going above and beyond its traditional understanding. 47 Yet is the Court in fact deliberately moving in the social rights direction? In order to answer this question, it is worth having a look at the social security case law the ECtHR rendered after Bélané Nagy and Baczúr.
In its relatively brief judgment in Baczúr, the Court made no less than 11 references to the Grand Chamber judgment in Bélané Nagy, rendered a few months earlier. It referred to the principles and application thereof in Bélané Nagy concerning both the interpretation of and the review of Article 1 P1. That the Baczúr reasoning endorsed this Grand Chamber judgment should come as no surprise. After all, the legal background in both cases was the same, that is, both concerned the same new Hungarian disability law and its effects. Yet the principles elucidated in Bélané Nagy and repeated in Baczúr also had a broader resonance. A search in the HUDOC database shows that the Grand Chamber judgment has to date been mentioned in 17 judgments, excluding Baczúr, and in 15 admissibility decisions. 48 It is worth having a closer look at how the reasoning outlined above influences the Court’s findings in its most recent case law. This presents some important insights into which aspects of its ‘social’ reasoning under Article 1 P1 are of recurring importance in the Strasbourg social security case law, and which questions remain. I first deal with the ‘socialisation’ of the Court’s fair balance review, and then turn to the way it deals with the – much more disputed – legacy of Bélané Nagy when it comes to the interpretation of ‘legitimate expectations’.
The resonance of Bélané Nagy and Baczúr in the Court’s Review
The 2017 case of Lengyel v. Hungary involved the same legislative change that was central to Bélané Nagy and Baczúr.
49
The case is more comparable to Baczúr, however, as the complainant was in receipt of a disability pension when the new legislation came into force. Under the new scheme, she was again granted a benefit, which was, however, significantly lower (approximately EUR 140) compared to her earlier grant (approximately EUR 305). The applicability of Article 1 P1 was not disputed between the parties, and the issue hence turned on the proportionality of this decrease. On various occasions, the judgment refers to the principles set out in Bélané Nagy. One of these references was as follows: ‘The Court notes that although the applicant – unlike Mrs Nagy – was not completely deprived of all entitlements, her income was nevertheless abruptly reduced to EUR 140 per month. This element is aggravated by the fact that the applicant apparently had no other significant income on which to subsist and that she belonged to a vulnerable group of disabled persons’.
50
In the case of Fábián v. Hungary, the essence of the applicant’s property right was, according to the Grand Chamber, left intact. 51 The issue at stake concerned the discontinuation of the State old-age pension for persons working in the public sector. In December 2015, a Chamber of the Court concluded that this violated Article 14 (the prohibition of discrimination) in conjunction with Article 1 P1 since the State had not sufficiently justified the distinction made between the public and the private sector and between different categories of public sector workers. 52 On appeal, however, it was concluded that the distinction made was not contrary to Article 14. In the Grand Chamber’s review under Article 1 P1, taken alone, references to Bélané Nagy ultimately served the purpose of distinguishing this case from the one of Mr Fábián. 53 However, the Court’s efforts to outline various aspects that are central to the fair balance test in social security cases corroborated much of Bélané Nagy and Baczúr. It highlighted: (i) the extent of loss of benefits; (ii) the element of choice; (iii) the extent of the loss of means of subsistence; and (iv) the alleged discriminatory aspect. 54 The suspension in Fábián was temporary and the applicant would again receive his pension if he decided to stop working. Moreover, since the pension was not his sole income, and was assumed to be lower than his salary, no violation had occurred. The outlining of relevant aspects must be welcomed for making more transparent the Court’s approach. It will be interesting to see whether these criteria will be used more often, as well as how aspects (i) and (iii) are related to each other. For the purposes of this article, although Fábián mainly confirms that if one’s means of subsistence is not as at risk (unlike the situation in Baczúr and Bélané Nagy), a disproportionate relationship between a social security measure and its effects on the individual is less likely to be found. The criteria identified confirm the Court’s increasingly social outlook on social security cases, taking seriously the social situation an applicant finds himself in. At the same time, this approach is a ‘minimalist’ one, in the sense that it is primarily concerned with cases in which a social minimum is at stake. 55
In Krajnc v. Slovenia, the Court again reviewed whether the applicant, in the long term, could subsist given changed circumstances. 56 The change here was not concerned with the applicant’s situation, but rather with the applicable legal framework. Ironically, the fact that his medical situation had deteriorated was the reason that the new law applied, and he was suddenly divested of half of his disability benefit. Indeed, because there had not been any transitory period for Mr Krajinc to adjust to the new situation, Article 1 P1 was found to be violated.
The final judgment relevant to the protection of a subsistence minimum in the Court’s proportionality analysis since Bélané Nagy and Baczúr, is Čakarević v. Croatia. 57 This judgment is different in that it concerns the repayment of unemployment benefits erroneously granted. Ms Čakarević had received these benefits from 1996 onwards. In 2001 she was ordered to pay back the benefits received since June 1998, as she had received them for longer than the legally permitted period. In poor health, unemployed, and with no income, she could not pay back this money, not even in the 60 instalments offered to her. Generally, according to the Court, authorities are not prevented from correcting their mistakes, albeit in this case they could only be rectified at the expense of the applicant. Since she had received a decision that granted her the benefit, Ms Čakarević could rely on the payments being legitimate. She acted in good faith and did not withhold any information from the authorities. Moreover, it was important that the benefits formed her means of subsistence. Taking into account information from the enforcement proceedings suggesting she had no bank account, income of any sort, or property of any significance, the Court held that ‘the sum she received on account of unemployment benefits is a very modest one and as such has been consumed for satisfying the applicant’s necessary basic living expenses, that is to say for her subsistence’. 58 In view of these and other considerations, the repayment order entailed an excessive burden and thus was a violation of the applicant’s property rights.
A legitimate expectation to receive a subsistence minimum?
From the cases just discussed, it may be concluded that interference with an applicant’s subsistence minimum is now a more or less crucial consideration when deciding on the proportionality of social security measures. Even though property protection does not necessarily have a focus on the poor, in this way the ECtHR gives its review a ‘social rights touch’. Whether Article 1 P1 can guarantee a right to a subsistence minimum, however, is not only a matter of proportionality. If it is still required that a benefit is actually granted before one can rely on this provision (unless the non-granting is based on a discriminatory criterion), there is still no positive obligation under the Convention for the State to always provide, at least, a subsistence minimum. Hence, it is important to also delve into the resonance of, in particular, Bélané Nagy when it comes to the interpretation of the legitimate expectation needed to trigger the application of Article 1 P1. This resonance is limited compared to the impact of social minimum considerations on the Court’s review. However, a few findings are worth discussing.
Continuing with the case of Čakarević v. Croatia on the repayment order for erroneously granted minimum benefits, the Court interestingly noted that: ‘taking into account in particular the nature of the benefits as current support for basic subsistence needs, the question of whether the situation was capable of giving rise to a legitimate expectation that the entitlement was duly in place must be assessed with a view to the situation prevailing at the time when the applicant was in receipt of the payments and consumed the proceeds. The fact that the administrative courts subsequently established that the payments had taken place without a legal basis in domestic law is under these circumstances not decisive from the point of view of determining whether, at the time when the payments were received for the purpose of covering the applicant’s living costs, she could entertain a legitimate expectation that her presumed entitlement to those funds would not be capable of being called into question retrospectively’.
59
It can be doubted whether, in Bladh, the Court considered the legitimate expectation doctrine relevant in the first place to social security issues. If not one day before having finished the training in order to obtain a further period of benefit, when would such an expectation come into play? Only if one meets all the relevant criteria but still does not obtain the benefit, it seems. When, alternatively, one does not meet a discriminatory requirement, the issue falls within the ‘ambit’ of Article 1P1 without the Court having to engage with the issue of legitimate expectations. 61
The conclusion is not, however, that the Grand Chamber’s reasoning in Bélané Nagy, where it found that Article 1 P1 applied even though the applicant did not, and could not, meet the criteria for the new disability benefit, has not resonated in the Court’s case law and the debate on it. This becomes evident, for example, in a dissenting opinion attached to the 2018 case of Bikić v. Croatia. 62 The case concerned a complainant who wanted to buy the house she occupied but never had a specially protected tenancy that would allow her to do so. In its discussion of the principles related to legitimate expectations, the majority had referred to the case of Radomilja v. Croatia, 63 expressly contrasting it with Bélané Nagy. 64 According to the dissenters in Bikić, there is no contradiction between the principles set out in Radomilja and in Bélané Nagy – they nevertheless held that the Court should provide more clarity to avoid conflicting interpretations of legitimate expectations.
Indeed, looking at the Radomilja judgment, together with the decision in Bikić, it can easily be concluded that the Court here was advocating a more cautious approach. Emphasising that ‘a legitimate expectation has no independent existence; it must be attached to a proprietary interest for which there is a sufficient basis in national law’, could be read to exclude property protection in a case like Bélané Nagy where the legal requirements for obtaining the benefit desired had simply not been met. In Radomilja, which concerned the acquisition of land by adverse possession, the Grand Chamber found that there was no sufficient basis in national law as it found no reason to disagree with the national courts’ conclusion that the legal conditions had not been met. In Bikić, likewise, and in quite a formalistic way, the lack of a specially protected tenancy led the Court to conclude that there was no ‘possession’ and Article 1 P1 was thus not violated. These issues are quite different from what was at stake in Bélané Nagy (and Baczúr), but to argue that we therefore do not need to take the Court’s interpretation in the different cases into account would be missing the point of trying to clarify the obligations stemming from the Convention. Setting Bélané Nagy aside as a ‘hard case’ – perhaps ‘not [making] good law’ 65 – does not do justice to the Grand Chamber judgment’s potential for social rights protection under the Convention and the protection of property in particular. Given the somewhat mixed signals the Court is sending, what exactly is this potential, and what role does minimum subsistence play in it? In the final section, I argue that, although the Court takes account of the fact that a subsistence minimum is at issue in both its interpretation of ‘possessions’ and its review of measures (not) taken, this is unlikely to result in the recognition of a self-standing right to minimum subsistence. This conclusion can be drawn from Bélané Nagy, Baczúr, and the responses to these cases, but also from the structure of the right to protection of property and the role of the ECtHR in this regard.
Minimum subsistence as a property right?
Although the Strasbourg case law provides evidence of a relatively new 66 focus on minimum subsistence issues, it is unlikely that a positive, self-standing right to a subsistence minimum is about to be recognised under Article 1 P1 ECHR. By ‘positive’, I refer to a right that requires states to actively provide benefits in order to guarantee such a minimum, rather than a requirement not to cut existing benefits to the extent that no sufficient minimum remains. 67 By ‘self-standing’, I mean a claim independent from being in receipt of a state benefit or meeting the legal criteria for a minimum benefit. While the ‘socialisation’ of Article 1 P1 is a fact, this remains a bridge too far.
Should we be disappointed by the poor prospects for a right to a subsistence minimum as a matter of property protection? Yes, perhaps, if we envision a Convention protecting an indivisible set of rights that reflect what we consider important in society, mirroring international agreement on social issues. 68 Not necessarily, if we consider the, in several ways limited, and essentially judicial, task of the ECHR as guarantor of the rights enshrined in the Convention. Both answers require some further explanation.
First, being a ‘living instrument’, there are not that many fundamental rights issues still falling outside the scope of the Convention. In its interpretation of the norms listed in the Convention, the Court has embraced the indivisibility of rights and deals with complaints on social issues like housing and health, as well environmental issues. 69 One of the methods it is using in its interpretations is ‘comparative’ or ‘consensus’ interpretation. 70 This means that in unravelling the obligations that stem from the ECHR, the Court looks at rights that are being protected and developments that are occurring at national level. It also entails that international materials evidencing international (or European) agreement on state obligations, are considered. For this approach to have an impact on a particular state’s obligations in a case reviewed under the ECHR, it is not even required for the state to have ratified the relevant convention. 71 The Grand Chamber’s reference to ILO Conventions 102 and 108 serves as an illustration of the role of international materials. It held that Ms Bélané Nagy’s 23 years and 71 days of service far exceeded the five-year minimum period that, under the European Code of Social Security and these ILO Conventions, warranted at least a reduced invalidity benefit. In line with this, it is arguably possible for the Court to hold states accountable for agreements made in (other) international contexts, or at least let these be reflected in obligations recognised under the Convention. In the hearing held in the Bélané Nagy case in December 2015, the applicant’s representative argued that it would only be a matter of future interpretation to conclude that Article 1 P1 includes a right to social security and invalidity benefits. 72 But will it indeed merely be a question of time before the Convention will guarantee a right to minimum subsistence?
At least when we talk about the right to protection of property as enshrined in Article 1 P1, it will not. As a judicial organ rendering binding judgments and tasked with the ‘interpretation (…) of the Convention and the Protocols thereto’, 73 the Court cannot do more than that. It reviews measures interfering with the various Convention rights, usually relying on a proportionality analysis. Yet it cannot examine the proportionality of any act or omission by the state; only if it impacts on the rights enshrined in the ECHR, is there a task for the supranational ECtHR. 74 Thus, as soon as a benefit is provided, a decrease in the amount of this benefit can be reviewed as an interference with property rights. 75 Other than that, unless conditions are discriminatory, it must at least be plausibly argued that a proprietary interest is present. In other words: the Court cannot omit the interpretation stage and needs to convincingly argue why it has jurisdiction to review a given case. If a complaint invokes Article 1 P1, there must be a ‘possession’ (or legitimate expectation) 76 that was interfered with – the provision does not include a right to acquire property. 77 As Radomilja and Bikić show, there are situations in which this is all but a non-issue. Indeed, much of the debate after Bélané Nagy deals exactly with this: how is it possible to protect a right to a benefit qua property right, when the conditions set at national level have not been met? And: if no ‘asset’ specified by law is concerned?
This issue must also be viewed in the light of institutional concerns. ‘Activism’ on the part of the Court in this regard may have adverse effects. The ECtHR should not be hampered by potential criticism from states that are unhappy with its judgments. The Court should, however, be mindful of the sensitive position it finds itself in. 78 Being, on the one hand, a supranational Court established to help guarantee the protection of human rights throughout Europe, while, on the other hand, having turned into a semi-constitutional court 79 dealing with a wide range of issues in over a two hundred judgments a year, 80 the Court has to meet different and sometimes conflicting expectations. 81 If it wants to retain its important role in the European legal sphere, a clear and convincing argumentative style is indispensable. 82
Given these caveats, the revolutionary character of Bélané Nagy should not be exaggerated. In any case, the interest at stake came ‘very close’ to a legitimate expectation based on a combination of contributions paid, a prior entitlement and the fact that a rehabilitation allowance was recommended – albeit not related to a specified ‘asset’. It is up to the Court to consider future complaints for resolving this lack of interpretative clarity regarding the ‘social dimension’ of Article 1 P1. 83 One option supporting an indivisible, social reading of Article 1 P1, without recognising a general right to minimum subsistence, would be for the Court to hold that the payment of contributions – for a certain period of time – amounts to a legitimate expectation even if the conditions are not met. 84 A legitimate expectation could then be derived from the payment of contributions, in combination with the occurrence of a (health) condition, that would allow a property rights claim under the Convention. Although such an interpretation would be far-removed from a general right to minimum subsistence, it could be argued that it would conform to the wording of Article 1 P1. Once (sufficient) contributions have been paid, it could be said, a proprietary interest would be present. At the same time, this interpretation would be ‘a step back’ in the sense that the Court in 2005 abolished the distinction between contributory and non-contributory benefits. 85 And for good reason: the different payment methods in the CoE Member States when it comes to (minimum subsistence) benefits would make it ‘artificial’ to only include contributory benefits. 86 Should the Court return to this distinction for recognising positive obligations in the field of social security, the protection offered might again be subject to the manner in which social security systems are organised. A second issue is, of course, that it will not be easy to determine the period or amount of contributions that amounts to a proprietary interest, if this is considered an additional criterion.
Alternatively, other Convention Articles could be interpreted so as to protect a social minimum. Although this would have the advantage that the ‘possessions’ criterion would not need to be dealt with, it would have problems of its own. For example, relying on the positive obligations that stem from the right to private life (Article 8 ECHR) to claim a social minimum, would make a great deal of sense but also would make the Court cross some marshy ground. 87 Once it is explicitly recognised that this provision entails a social minimum, it needs to be asked what this minimum consists of, whether it is different in different circumstances and according to the means available, and what exactly the role of the ECtHR is in resolving these issues. In cases in which the lack of such a minimum clearly has serious effects on a person’s private (or family) life, it would be possible to hold that the state is under an obligation to provide minimum assistance. In line with the margin of appreciation, it could be left to the state to determine how this obligation should be complied with. In extreme cases, Article 2 (right to life) 88 and Article 3 (prohibition of degrading treatment) 89 could also form the starting point for the protection of a social minimum, even though the Convention does not include ‘a positive obligation to support a given individual’s chosen lifestyle out of funds that are entrusted to them as agents of the public weal’. 90
Concluding remarks
This article has dealt with recent social security case law under Article 1 P1 ECHR and discussed the question of whether this case law can be read as (in effect) recognising a right to a subsistence minimum. In Bélané Nagy v. Hungary and Baczúr v. Hungary, the ECtHR emphasised that, in determining whether an interference with a benefit is proportional, an important consideration is whether the individual still receives a subsistence minimum. Moreover, it held that a right to a (minimum) benefit can exist even if the conditions for receiving this benefit have not been met. Read together, the two cases point to an increasingly social interpretation of the property right enshrined in Article 1 P1 involving positive obligations and a focus on the neediest.
It was shown that, on a closer look, the Court’s interpretation is not a very straightforward one. The discussion of social security cases decided after Bélané Nagy and Baczúr makes it clear that, although there is an obvious trend towards protecting claimants’ means of subsistence, the relationship between property and the right to such means remains opaque. It has become evident that the question of whether the essence of someone’s social security rights was interfered with, that is, whether he or she did not receive, or no longer received, a social minimum, is of central importance when determining the proportionality of an interference. Whether the lack of a social minimum by definition entails an interference with the right to protection of property is a fundamentally different question. In recent decades, the Court has moved from finding a proprietary interest in social security cases when contributions had been paid, to recognising that a possession in case conditions for a benefit was met or a benefit was received, regardless of whether contributions had been paid. Yet holding on to this ‘conditions criterion’ increasingly conflicts with a social interpretation and an emphasis on minimum subsistence. Nevertheless, this article has shown that minimum subsistence as a matter of proportionality review is something different from minimum subsistence as a matter of property rights interpretation. The latter must involve a convincing reason for why something is a proprietary interest and merits prima facie property rights protection. As Bélané Nagy shows, the possibility to do so is inherently limited.
It is for the Court to determine the future path of Article 1 P1 and the role in it of contributions and conditions. As I have argued, one way to resolve the current confusion is to recognise a right to a subsistence minimum when (sufficient) contributions have been paid. At the same time, the Court had good reason to drop the distinction it had made between benefits funded by contributions or by some other means in the past. Another way to deal with the protection of a social minimum under the Convention would be to shift the focus to other Convention Articles that more broadly protect rights that can be linked to such minimum, such as ‘private life’. In any case, the Grand Chamber judgment in Bélané Nagy has shown that the relationship between the right to protection of property and social security rights remains complex, regardless of the large number of cases decided since the Court first dealt with this topic. It is worth keeping a close eye on Strasbourg to see what will happen next, while for the judicial protection of a social minimum we should also be sure to look elsewhere.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.