Fairness in welfare: Applying Article 6 ECHR to benefit sanctions

Abstract

This article examines the procedural rights of benefit recipients facing social security sanctions, focusing on the potential effects of applying additional protection from Article 6 of the European Convention on Human Rights (ECHR) to benefit sanctions. While applicable to all Council of Europe member states, it primarily draws on examples from the Netherlands. The research explores whether extending this criminal law protection – which is currently limited to punitive sanctions – to cases of benefit sanctions could address disparities in procedural fairness. This issue is analysed within the broader context of increased conditionality and automation in social security, which has intensified the repressive nature of welfare systems. Drawing on European Court of Human Rights case law and social security literature, the study argues that the existing difference in legal guarantees pertaining to punitive sanctions and to benefit sanctions may be undesirable, given the severe impact that benefit sanctions have on recipients. Findings suggest that Article 6 ECHR safeguards, such as the presumption of innocence, the right to an interpreter and the right to a full review of a judicial body with full jurisdiction, could strengthen the procedural position of benefit recipients and thus help to restore the balance between rights and obligations affected by the trend towards conditionality. Extending Article 6 ECHR procedural guarantees to those facing benefit sanctions could help create a better balance, promoting fairness in welfare.

Introduction

Modern welfare states hold significant legal and instrumental power to impose their will on citizens. In the current repressive climate, this has become evident through a cycle of increasingly stringent obligations and harsher consequences aimed at addressing benefit fraud and misuse, as benefit recipients are portrayed as risks to the public interest, justifying stronger enforcement measures (Vonk, 2014: 188–192). The repressive nature of modern welfare states is highlighted by the growing trend of conditionality in social security, with increasingly strict conditions on benefit eligibility (Dwyer, 2004; McKeever, 2009; Vonk, 2014: 188–194). This trend reflects the view that benefits should be reserved for those deemed ‘deserving’, while others face sanctions, such as fines or benefit reductions, with significant financial consequences. In practice, however, the distinction between the ‘deserving’ and the ‘undeserving’ is often influenced by political perceptions (Spijkstra, 2024: 29-33; Vonk, 2014: 188–202). Furthermore, the issue is exacerbated by the increasing reliance on automated systems in social security proceedings, as these systems operate on potentially biased data that may disproportionately impact marginalised groups and lack the transparency necessary to identify such biases (Green, 2022; Haitsma, 2023; Hubková, 2024: 18–19; Palmiotto Ettorre, 2022; Završnik, 2020: 576–581). This can perpetuate welfare stigma and may ultimately lead to welfare state dystopia (Alston, 2019: 21-23; Bach, 2014: 321–323; Vonk, 2024). ¹ Given the severe impact of these practices, procedural safeguards are essential to maintaining a balance between the rights and obligations of benefit recipients, thereby preserving the core purpose of social security law: to protect society's most vulnerable citizens (McKeever, 2009).

The procedural safeguards for benefit recipients facing social security sanctions vary depending on the accusation. Citizens confronted with punitive sanctions for information fraud receive the criminal protection of Article 6 of the European Convention on Human Rights (ECHR or Convention), guaranteeing a fair trial and all the ancillary rights ensuing from that. In contrast, those confronted with benefit sanctions for not adhering to work duties lack this additional Article 6 ECHR protection. This analysis applies to social security systems across Europe, specifically the 46 member states of the Council of Europe, as they are bound by the ECHR and its interpretation by the European Court of Human Rights (ECtHR). Specific examples will focus on countries which employ a strict system of benefit sanctions, amongst them the Netherlands, which is a country of reference in this article (Council of Europe, 2025). The article explores the possibility of an analogous application of Article 6 guarantees to benefit sanctions (Lamon, 2016). Courts, administrative agencies and the legislator may opt for an analogous application, for example, in consequence of general principles of good administration or when applying a proportionality test. Such an approach, involving an optional extension of Article 6 protective standards outside the strict material scope of Article 6 itself, seeks to rebalance the scale of rights and obligations. The research question is: What is the added value of applying additional Article 6 ECHR guarantees to social security benefit sanctions?

While existing literature has recognised a connection between stringent conditionality and social security sanctions (Dwyer, 2004; McKeever, 2009), with both punitive sanctions and benefit sanctions coming under the same realm (Vonk, 2014), the difference in procedural safeguards points at a gap in legal protection for claimants who are confronted with benefit sanctions, which this article seeks to address. Other relevant rights within the ECHR which may affect the lawful character of sanctions for social security recipients, such as Articles 3, 4, 8, 10, 14 and Protocol 1 Article 1 of the ECHR (Adler, 2018; Dermine, 2015; Paz-Fuchs, 2020: 27–48; Slingenberg and Leijten, 2023: 30–63), remain untouched. The scope of this article is limited to the criminal limb of Article 6 ECHR, as the preliminary phase of this research suggests that the civil limb fails to provide the insights necessary to address the issue of welfare state dystopia (European Court of Human Rights, 2024a). Within the criminal limb, the article will discuss the most relevant guarantees that directly impact recipients’ ability to challenge sanction decisions: the presumption of innocence, access to legal assistance and an interpreter, and the right to a full judicial review. The distinction between benefit sanctions and punitive sanctions is further clarified in the following section. This article follows the legal interpretation of punishment as the imposition of burdensome or reprobative sanctions on individuals accused of a crime by an authority (Hoskins and Duff, 2024).

The article is structured in several parts. The section below distinguishes between benefit and punitive sanctions in social security. This is followed by an examination of the relevant Article 6 ECHR safeguards applying to punitive sanctions, and by an analysis of the potential value of applying these safeguards analogically to benefit sanctions. Conclusions are then drawn.

The landscape of sanctioning in social security law: punitive sanctions vs. benefit sanctions

This section outlines the landscape of sanctioning in social security law. It begins by situating the sanctioning regimes within the broader enforcement framework of social security proceedings. It then clarifies the distinction between punitive sanctions and benefit sanctions, followed by a reflection on how these sanctions relate to the stringent conditions of a repressive welfare state.

The enforcement of social security law encompasses all activities aimed at ensuring the lawful execution of these regulations. Beyond sanctioning, enforcement involves prevention, control and reclamation, together forming a ‘chain of enforcement’. The process begins with prevention activities, which seek to avoid the unlawful distribution of social security benefits. Next comes control, focused on verifying eligibility for benefits. If necessary, reclamation activities are carried out by welfare agencies to recover unduly paid benefits. These stages should be distinguished from the final step in the enforcement chain: sanctioning (Klosse and Vonk, 2022: 361–364). While the sanctioning phase involves both investigations and the imposition of sanctions, this article focuses on the latter. Social security proceedings legally classify these sanctions as either punitive or benefit sanctions, a distinction used in several European countries, including the Netherlands, Germany, and the United Kingdom (Eleveld, 2014, 206–209; Vonk, 2014: 190–194). This classification has a significant impact on the legal protection available to recipients.

The first category of sanctions in social security law is punitive sanctions, which are imposed in cases of welfare fraud connected to a violation of information duties. This occurs when a benefit recipient manipulates their obligation to provide accurate information, such as providing false details to gain a financial advantage or withholding relevant information that affects the level of their benefits. For example, an individual might falsely claim to have a medical condition in order to receive sickness benefits while actually being in good health. These actions are considered criminal offences. Punitive sanctions can be imposed under criminal law, allowing public prosecutors to initiate legal proceedings that may result in fines, compulsory community service, or even imprisonment. They may also be pursued under administrative law, leading to administrative fines, sometimes also referred to as ‘penalties’. Whether classified under criminal or administrative law, these sanctions are inherently punitive in nature, aiming to impose painful consequences and deter future violations of legal rules. Notably, as criminal offences, punitive sanctions are fully protected under Article 6 ECHR, ensuring the rights of those facing criminal charges.

The second category of sanctions in social security law is benefit sanctions, which are imposed in cases of deemed ‘welfare misuse’. These sanctions arise when benefit recipients fail to meet their co-operation duties, most importantly those related to the work test. For example, an individual receiving social security benefits may fail to apply for jobs, despite this being a condition for receiving benefits. Benefit sanctions fall under administrative law, as they are imposed by the relevant administrative body. They can include actions such as warnings, reductions in benefits, or even the complete suspension of benefits, either temporarily or permanently. These sanctions are intended to reprimand undesirable behaviour, particularly failure to comply with the conditions for receiving welfare benefits. However, as benefit sanctions are not classified as criminal charges, claimants are generally not afforded the judicial protections under Article 6 ECHR enjoyed by those facing punitive sanctions (Klosse and Vonk, 2022: 364, 379–380; Pieters, 2006: 115–120; Vonk, 2014: 190–194). An example of how the distinction between punitive sanctions and benefit sanctions may be explicitly reflected in statutory provisions is the Dutch Participation Act (Dutch: Participatiewet). Article 18 of the Participation Act constitutes a benefit sanction, as it specifically addresses co-operation obligations and provides for the reduction of benefits if these obligations are not fulfilled. In contrast, Article 18a (1) of the Participation Act establishes that an administrative fine – classified as a punitive sanction – may be imposed for non-compliance with the information obligations set out in Article 17(1) of the Participation Act. ²

Although legally distinct, benefit fraud and misuse are closely linked, both shaped by the welfare system's repressiveness, including its conditionality and automation, which often lead to sanctions (Vonk, 2014: 189–190). In both cases, individuals must be culpable of some wrongdoing to justify the imposition of a sanction (Pieters, 2006: 118). Moreover, whether accused of fraud or misuse, the consequences for benefit recipients are often profound and long-lasting. Sanctions, whether fines or benefit suspensions, can cause significant harm, particularly as many of those affected depend on social support for their livelihood (Pattaro et al., 2022: 621).

Despite these commonalities, the legal distinction between punitive and benefit sanctions leads to different procedural protections, while at the same time, the sudden reduction or suspension of benefits can have an equally, if not more, profound impact on the personal lives of beneficiaries than punitive sanctions (Pieters, 2006: 118; Wright et al., 2019: 283). This is evident, for example, in illustrations from case law relating to social assistance under the Dutch Participation Act. A benefit recipient who failed to comply with the work test had their benefits reduced by 100% for a period of one month, effective from the following month. ³ In contrast, a benefit recipient who was fined for failing to declare all his stays abroad was granted 12 months to pay the required sum of money. ⁴ Both sanctions impose significant financial burdens on individuals reliant on social security benefits, yet the difference between an immediate benefit reduction and the ability to pay a fine over time has substantial consequences, as the former can result in sudden and severe financial hardship. This illustrates how the level of procedural protection varies depending on whether a sanction is classified domestically as a punitive sanction or a benefit sanction, highlighting the practical implications of this legal distinction.

Although benefit sanctions are not covered by the criminal protection under Article 6 ECHR, this does not mean that claimants facing such sanctions are entirely without legal protection. Legislation, or even the national constitution, may contain certain safeguards and general legal principles, such as equality and proportionality, along with principles of good administration, that can help mitigate the harshness of the sanctions (Gantchev, 2019: 378–383). These safeguards tend to be flexible and open to interpretation. Nonetheless, the absence of hard procedural guarantees leaves claimants facing benefit sanctions in a weaker legal position in relation to the administration compared to claimants subject to punitive sanctions. This may have broader ramifications for the quality of the legal regimes at large. Thus, for example, in the Netherlands, the highest social security court, the Central Appeals Tribunal, relied on procedural guarantees, such as those protected by Article 6 ECHR, to amend the strict regime of administrative fines introduced in the Netherlands with the Fraud Act 2013, while the regime of benefit sanctions is left largely untouched by the judicial scrutiny of this court (Tollenaar, 2018: 21–30).

The legal protection of Article 6 ECHR regarding punitive sanctions

This section examines the additional criminal safeguards under Article 6 ECHR, discussing their application and protections relevant to social security proceedings. The central principle of Article 6 ECHR is fairness, which consists of two components: the civil limb and the criminal limb. The civil limb, under Article 6(1), applies to benefit sanctions, while the criminal limb, covering Article 6(1–3), applies to punitive sanctions. The interpretation of procedural guarantees under Article 6(1) may vary between civil and criminal cases, as the requirements of a fair hearing are stricter in criminal law. However, this article primarily focuses on the additional safeguards provided under the criminal limb. ⁵

The criminal limb guarantees fundamental rights such as fairness, a public hearing, and a trial within a reasonable time. In addition to this general protection, it ensures specific rights, including the presumption of innocence and various defence rights (European Court of Human Rights, 2024b). While it shares some protections with the civil limb, the criminal limb offers additional procedural safeguards. However, measures to prevent disorder or crime are not covered by Article 6 guarantees. ⁶ Nonetheless, the European Court of Human Rights considers criminal proceedings as a whole, including the inquiry and investigation stages in the pre-trial phase. ⁷

Application of the criminal limb

The ECtHR has established three criteria to determine if a criminal charge exists and, consequently, whether Article 6 ECHR applies in a criminal context: the legal classification of the offence under domestic law, the nature of the offence, and the severity of the penalty the individual risks incurring. ⁸ The first criterion, the domestic classification, is of relative weight; if domestic law classifies the offence as criminal, this is decisive. However, if not, the ECtHR looks beyond the domestic classification to assess the substantive reality of the procedure, as the concept of a criminal charge has an autonomous meaning. ⁹ The second and third criteria are alternative rather than cumulative, meaning the criminal limb applies if the offence is either criminal in nature or exposes the individual to a penalty that, due to its nature and severity, falls within the criminal sphere. ¹⁰ If a separate analysis of each criterion does not clarify whether a criminal charge exists, a cumulative approach may be used. ¹¹

For the first criterion, the distinction between social security proceedings falling under criminal or administrative law is generally clear. Most social security proceedings, including sanctioning, are governed by administrative law, while criminal law applies to severe sanctions with punitive or deterrent purposes. However, the threshold for applying criminal law varies between countries (Luchtman, 2014: 195). Ultimately, the purpose of the sanction matters more than its classification under domestic law. Punitive sanctions, even if classified under administrative law (e.g. administrative fines), are considered part of the criminal limb under Article 6 ECHR.

The second criterion is considered more important than the first one. ¹² In assessing this criterion, factors include whether the legal rule targets a specific group or is generally binding, if it is enforced by a public body, whether it has punitive or deterrent purposes, whether it protects societal interests typically safeguarded by criminal law, whether the sanction is based on a finding of guilt, and how it compares to similar procedures in other Council of Europe member states. ¹³ Determining if an offence is criminal in nature requires a holistic approach, focusing on whether the procedure aligns with criminal law characteristics and thus warrants procedural protection. ¹⁴ Sanctions with punitive and deterrent, rather than merely compensatory, objectives meet this criterion. ¹⁵ The ECtHR does not always specify if a decision is punitive or deterrent, but it has recognised that administrative fines in social security proceedings can serve both preventive and punitive purposes, placing them within this category as well. ¹⁶

The third criterion examines the maximum potential penalty prescribed by the relevant law. While the severity of the actual sanction is relevant, the focus is on the potential risk faced by the citizen. ¹⁷ The relative lack of seriousness of the penalty at stake does not change the inherently criminal character of the offence. ¹⁸ Although the possibility of converting a fine into imprisonment is particularly concerning, the mere absence of imprisonment alone is not in itself decisive. Ultimately, the relatively minor severity of the penalty in question cannot divest an offence of its inherently criminal character. ¹⁹

The landmark case Özturk v. Germany confirmed that administrative cases can fall under the criminal limb. The ECtHR ruled that a minor traffic offence, despite being classified as an administrative matter under German law, still constituted a criminal charge under Article 6 ECHR, thereby granting the applicant the protection afforded by the criminal limb. ²⁰ Additionally, administrative offences have been classified as criminal charges in cases involving road traffic violations, public nuisance or breaches of the peace, the organisation of public assemblies, and, notably, offences related to social security legislation (European Court of Human Rights, 2024b: 13). An important example is the case of Hüseyin Turan v. Turkey, where the ECtHR ruled that an administrative fine for failing to declare employment to the social security office, a violation of Turkish social security law, had an inherently criminal character, despite the modest nature of the fine imposed. ²¹ In domestic law, this offence was not classified under criminal law, but the criterion regarding the nature of the offence was of greater importance. The fine was not intended to financially compensate for damage but was aimed at punishing and deterring the conduct. Therefore, the nature of the legal provision and the preventive and punitive objectives of the sanction were sufficient to establish the criminal nature of the offence for the purposes of Article 6 ECHR. ²²

Protection under the criminal limb

While both the civil and criminal limbs guarantee essential rights such as procedural fairness, a public hearing and a reasonable length of proceedings, the criminal limb provides additional safeguards. These include specific protection regarding the legal basis of the sanction (nulla poena sine lege, legal certainty, and ne bis in idem), procedures for prosecution and the imposition of penalties (presumption of innocence, notification of the accusation, right to remain silent and not self-incriminate, and the right to legal assistance and an interpreter), as well as the right to judicial review (a fair trial before an independent and an impartial judge, full review of a judicial body with full jurisdiction, and the publicity of the judgment) (Schlössels and Zijlstra, 2024: 716–717). Thus, while the civil limb grants member states significant discretion in handling evidence, the criminal limb is more prescriptive, with the Convention outlining specific rules and leaving less room for interpretation. ²³ This article focuses on the rights most relevant to sanctioning in the sphere of the repressive welfare state, namely, the presumption of innocence, the right to legal assistance and an interpreter, and the full review of a judicial body with full jurisdiction.

The presumption of innocence, as outlined in Article 6(2) ECHR, applies to both parallel and subsequent proceedings. ²⁴ However, this article focuses specifically on its application in criminal proceedings. In general, it does not apply in the absence of a criminal charge. ²⁵ Article 6(2) governs criminal proceedings as a whole and forms a key part of the broader right to a fair trial under Article 6(1), which also extends to sentencing procedures. ²⁶ The presumption of innocence entails several key safeguards, including safeguards against self-incrimination, restrictions on pre-trial publicity, and the avoidance of premature expressions of guilt by courts or public officials, such as investigators. ²⁷ It also regulates the use of presumptions of fact and law, ensuring they remain within reasonable limits that balance the stakes of the case with the protection of the defendant's rights. ²⁸ These presumptions must be reasonably proportionate. ²⁹ Regarding the burden of proof, the prosecution must inform the accused of the charges, to allow them to prepare and present their defence, and must produce sufficient evidence for conviction. ³⁰ A violation of the presumption of innocence occurs if the burden of proof is shifted to the defence, and any doubts should benefit the accused. ³¹ Problems arise when court decisions lack sufficient reasoning or impose an unattainably high burden of proof on the defendant, effectively undermining their ability to mount a successful defence. ³² In social security proceedings involving punitive sanctions, the presumption of innocence protects benefit recipients by placing the burden of proof on the administrative authority, which must justify its decision with sufficient reasoning (De Moor-Van Vugt, 2012: 31–32). For benefit recipients, the challenge of disproving accusations when contesting a decision is far more burdensome than simply waiting for the prosecuting authority to present evidence of guilt beyond reasonable doubt (Andrijauskaite, 2019: 364; Bailleux 2014: 146-152). ³³ This challenge is further exacerbated today by the use of automated systems, which may presuppose the recipient's guilt (Bahçeci, 2020: 879; Considine et al., 2022: 530). The requirement for authorities to prove guilt beyond a reasonable doubt when imposing punitive sanctions thus strengthens the procedural position of benefit recipients, helping to address the power imbalance between them and the government.

Furthermore, Article 6(3)(c) ECHR, granting the right to legal assistance, and Article 6(3)(e) ECHR, granting the right to free assistance of an interpreter, apply to anyone facing a criminal charge, and must be protected at all stages of the proceedings. ³⁴ Once a criminal charge exists, these safeguards take effect, extending to pre-trial proceedings, particularly the investigative phase, which often shapes the context in which the offence will be assessed. Failure to comply with these provisions would seriously prejudice the fairness of the trial. ³⁵ Regarding the right to legal assistance, there is a tension in administrative proceedings between the significant vulnerability caused by administrative decisions and the more routine cases that arise in administrative decision-making. Generally, the right to legal assistance does not apply at the preliminary stages of administrative proceedings (De Moor-Van Vugt, 2012: 30–31). However, when deprivation of liberty is at stake, the ECtHR is willing to uphold the requirement for free legal aid, particularly in cases where sanctions could lead to imprisonment. ³⁶ This is particularly relevant in welfare proceedings where punitive sanctions might result in a loss of liberty, as seen in the NAV-scandal in Norway, where benefit recipients were wrongfully imprisoned (Blindsonen, 2019: 31). Concerning the right to free assistance of an interpreter, this applies not only to oral statements made during trial hearings but also to documentary material and pre-trial proceedings. ³⁷ It extends to any documents or statements necessary for the accused to understand the proceedings or to have them translated into the court's language to ensure a fair trial. The interpreter's assistance must allow the defendant to understand the case against them and effectively defend themselves. ³⁸ For citizens facing punitive sanctions, this right guarantees assistance if they cannot understand or speak the language used, including key documentation related to the punitive sanction, thereby enabling them to defend themselves effectively.

As for the right to a full judicial review, assigning the prosecution and punishment of minor criminal offences to administrative authorities is not inconsistent with the Convention, provided the individual concerned has the opportunity to challenge any decision before a tribunal that ensures the guarantees of a fair trial. ³⁹ Therefore, decisions made by administrative authorities that fail to meet these requirements must be subject to subsequent review by a judicial body with full jurisdiction. ⁴⁰ The extent of the review carried out by domestic courts must consider the powers of the judicial body, as well as factors such as the subject matter of the dispute, the procedural guarantees in place within the administrative proceedings and the method of review. ⁴¹ For example, administrative courts that conduct a judicial review extending beyond a mere legality review, including a detailed analysis of the appropriateness and proportionality of the penalty imposed by the administrative authority, meet these requirements. ⁴² For benefit recipients facing punitive sanctions, the right to a full review ensures that the sanction is not disproportionally severe, which is particularly important in this repressive climate. It also allows scrutiny of the methods used to gather evidence, of the functionality of automated systems, and the real prospects of successfully contesting a decision, making a full proportionality test, conducted by an independent court, an essential safeguard to ensure fairness in punitive sanctions (Alston, 2019: 21-23; Vonk, 2014: 201).

In summary, the procedural position of benefit recipients facing punitive sanctions is significantly strengthened by the application of the criminal limb of Article 6 ECHR. Key safeguards in proceedings containing punitive sanctions, the presumption of innocence, the right to legal assistance, the right to an interpreter and the right to a full judicial review, ensure fairness throughout the process. These safeguards empower benefit recipients to effectively challenge sanctions they believe to be unjust.

Rebalancing rights and obligations with additional Article 6 ECHR protection for benefit sanctions?

The example given earlier of a benefit sanction resulting in a 100% reduction of benefits, effective from the following month, compared to a punitive sanction in the form of a fine with a 12-month payment period, illustrates that certain benefit sanctions which are not deemed to be in the criminal sphere may be more impactful on the personal lives of recipients. Even though benefit cuts are also designed to respond to a violation of duties and discipline the recipients, they formally do not meet the ECtHR's definition of a criminal charge. This situation highlights the limited scope of the protection of Article 6 ECHR. As soon as benefit sanctions are statutorily constructed as reparative benefit cuts instead of punitive fines, they fail to enjoy the protection offered by the criminal limb of Article 6 ECHR.

Building on the exploration of the legal safeguards offered by the criminal limb of Article 6 ECHR for punitive sanctions in social security proceedings, this section explores the potential benefits of applying these protections analogically to benefit sanctions. It evaluates the advantages and disadvantages of extending the criminal limb's safeguards by analysing the additional procedural rights discussed in the previous section in the context of benefit sanctions, and situates this application within the broader trend of conditionality.

Applying the criminal limb would mean that benefit sanctions are subject to the presumption of innocence. Although benefit sanctions are not intended to punish, they can only be imposed when an individual is culpable of wrongdoing, as they are still sanctions (Pieters, 2006: 118). However, in the case of benefit sanctions, even a minor mistake could lead to the reduction or suspension of benefits (Adler, 2018; Vonk, 2014: 196). The presumption of innocence would clarify the issue of culpability, shifting the burden of proof to the welfare agency, which would then be required to prove guilt beyond a reasonable doubt (Andrijauskaite, 2019: 364; Bailleux, 2014: 146-152). Additionally, since the criminal limb extends to the pre-trial phase, it would ensure that the investigation of benefit recipients is also protected under its provisions. ⁴³ This is particularly important given the reliance on automated systems in welfare investigations, which serve as the first step in imposing sanctions, while the emphasis on fraud detection may result in unjust labelling (Klosse and Vonk, 2022: 361–364; Spijkstra, 2024: 29–33; Van Oorschot and Roosma, 2017: 9–13). The presumption of innocence, as applied under the criminal limb, serves to protect recipients from unfair assumptions of guilt and shifts the burden of proof onto the welfare agency, to prevent recipients being sanctioned based on biased or incomplete information.

Furthermore, the criminal limb guarantees the right to legal aid, which could significantly improve the procedural position of recipients facing benefit sanctions. It would enable citizens to better understand the sanction imposed on them and to effectively navigate the legal process. However, a tension exists between administrative proceedings that create significant vulnerability due to impactful administrative decisions, and more routine administrative cases where legal assistance may not be seen as necessary (De Moor-Van Vugt, 2012: 30–31). While reducing or suspending citizens’ benefits may increase their vulnerability, it is unlikely to result in the provision of free legal assistance, as such assistance normally does not apply at the preliminary stages of administrative proceedings, unless the deprivation of liberty is involved. ⁴⁴ Despite their impact, benefit sanctions would likely not be considered to involve the same level of deprivation as imprisonment (European Court of Human Rights, 2024b: 94). As a result, the procedural benefits of the right to legal assistance for individuals facing benefit sanctions may be more limited.

While the right to legal assistance may have limited impact for individuals facing benefit sanctions, the right to free assistance of an interpreter can significantly enhance their ability to navigate the process. This right extends not only to oral statements during trial hearings but also to documentary material and pre-trial proceedings. ⁴⁵ As it extends to all documents or statements necessary for an individual to understand the case against them, provision of an interpreter is essential in the context of benefit sanctions for those who cannot read or understand the language in which the decision is communicated. Currently, domestic laws may treat the provision of an interpreter as part of general principles of good administration, such as diligent decision-making, often leaving the choice to the discretion of the administrative agency. For example, in the Netherlands, a recipient who only spoke Spanish had their benefits suspended based on a statement made in Dutch, without the assistance of an interpreter. The civil servant had decided to speak with the recipient directly, without offering interpretation services. The domestic court ruled that this process did not align with the careful preparation of a decision. ⁴⁶ Under the criminal limb, however, such discretion would be eliminated, ensuring that individuals facing sanctions are guaranteed access to the language support needed to effectively defend themselves. ⁴⁷

Ultimately, the right to a full review by a judicial body with full jurisdiction can be significant in cases where benefit sanctions are imposed. The ECtHR has emphasised that, particularly in criminal matters, domestic courts must have full authority to assess both factual and legal questions. ⁴⁸ This safeguard of full jurisdiction enables national courts to evaluate the complete proportionality of sanctions, which is a key concern in benefit sanctioning as they often cause significant harm (Dwyer, 2004; McKeever, 2009). While not legally punitive, these sanctions can be experienced as such. The existing discretion under the civil limb, coupled with the repressive climate, may result in situations where a recipient with only minor culpability faces a disproportionate and severe penalty, such as the complete suspension of their benefits, with direct and damaging consequences for their livelihood (Pattaro et al., 2022: 621; Pieters, 2006: 115–120; Vonk, 2014: 190–194). A full judicial review would ensure that benefit sanctions undergo more rigorous scrutiny, helping to safeguard fairness and proportionality.

While applying the criminal limb to benefit sanctions offers potential advantages, it also poses risks, such as overwhelming courts, causing delays and further criminalising minor administrative errors or non-compliance with welfare conditions – actions that are not inherently criminal. Additionally, applying the presumption of innocence to benefit sanctions could disadvantage the welfare agency in its correction of unlawful situations, particularly in ensuring that social security benefits are granted only to those for whom they are intended. However, it is also important to ensure that the powers granted to welfare agencies do not result in arbitrary decision-making. Moreover, in some cases, applying the criminal limb may be seen as granting excessive procedural protection. For example, affording a benefit recipient who fails to comply with reintegration obligations privileges against self-incrimination to uphold the presumption of innocence may seem disproportionate. Similarly, a recipient who fails to declare illegal income and is fined benefits from this protection. However, in other instances, such protection is essential rather than excessive, for example regarding the right to free assistance of an interpreter. A clear disparity arises when individuals requiring an interpreter receive free assistance when fined, but not when facing benefit reductions, despite both sanctions having significant financial consequences.

Currently, social security proceedings are largely driven by economic priorities, often at the expense of equality and inclusiveness (Webster, 2019: 322–325). In this context, the welfare state's focus on detecting misuse and imposing sanctions has blurred the line between administrative oversight and criminalisation, creating a repressive environment marked by stigma and punishment (Gustafson, 2009; Vonk, 2014: 194–197). Since minor administrative errors are already effectively criminalised through harsh sanctioning, rebalancing the rights and obligations of benefit recipients is essential. Procedural protection under the criminal limb could help restore this balance, as responsibilities under threat of sanctions should come with corresponding rights under the rule of law – even if this places additional demands on courts.

While the ultimate solution to the welfare state dystopia may require a comprehensive reform of its repressive nature, it is important to address the broader trend of conditionality in welfare systems regarding benefit sanctions (Vonk, 2014). As not all individuals can meet the conditions imposed upon them, there may be doubts about the effectiveness of such sanctions in promoting future compliance, particularly when non-compliance is unintentional (Dwyer, 2018; Vonk, 2024). Many recipients risk losing benefits for minor infractions, yet they may lack meaningful opportunities to challenge these decisions, if, for example, they are denied the right to an interpreter or forced to prove their innocence. In these cases, the welfare system, which is intended to support citizens, instead becomes a tool for punishment. The repressive nature is further exacerbated by the use of automated systems, which are opaque and may influence decision-making (Alston, 2019: 4, 21–23; Green, 2022; Korinek, 2020: 487; Završnik, 2020: 576–581). Although benefit sanctions are not technically punitive, their operation resembles that of punitive sanctions, due to the involvement of culpability, public enforcement, the goal of protecting the public interest and public funds, and their similarly impactful consequences (Pattaro et al., 2022: 621; Pieters, 2006: 118). Therefore, the rights and obligations of benefit recipients should be balanced. Applying the hard procedural guarantees under the criminal limb of Article 6 ECHR could strengthen this balance, which currently depends on the discretion of administrative agencies or domestic courts, thereby ensuring fairness and consistent protection of recipients’ rights.

Conclusion

Currently, benefit recipients sanctioned within the welfare system face a precarious situation, caught between securing procedural fairness and slipping into a dystopian reality. They have little control over which path unfolds, as it largely depends on whether they are sanctioned for fraud or misuse, determining whether punitive or benefit sanctions are imposed. As benefit sanctions do not formally meet the ECtHR's definition of a criminal charge, the individuals in question do not benefit from the protections afforded by the criminal limb of Article 6 ECHR. Extending the additional protections of the criminal limb beyond its strict scope would mean that safeguards such as the presumption of innocence, the right to an interpreter and a full judicial review would extend to benefit sanctions. These safeguards address the citizen's culpability, procedural fairness and the proportionality of the sanction, while limiting administrative discretion in procedural protection, thereby ensuring a fairer process, If the ongoing issues with conditionality and the repressive nature of the welfare state, combined with increasing automation, persist, the procedural safeguards under the criminal limb of Article 6 ECHR could help protect recipients facing benefit sanctions by enabling them to challenge decisions effectively. Ultimately, a more careful approach to welfare sanctioning would ensure greater balance between recipients’ rights and obligations, promoting fairness in welfare.