Last Updated on April 22, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Protection of property (Article 1 of Protocol No. 1)
In its judgment in Béláné Nagy v. Hungary the Grand Chamber examined how the notion of “legitimate expectation” had evolved since its judgment in Kopecký v. Slovakia and decision in Stec and Others v. the United Kingdom.
The applicant contributed to the social security scheme for over twenty years. From 2001 she received a disability pension (corresponding to a 67% loss in working capacity). Following a change in the assessment methodology, her disability score fell below the requisite minimum percentage and her pension was withdrawn. On reapplying she was again found to have a health impairment exceeding the relevant threshold. However, a new law in 2012 introduced a new eligibility criterion (a required number of days of social security cover in a given period) which she could not meet, with the result that she was no longer eligible for a disability pension.
The applicant complained that the 2012 law meant that she was no longer entitled to a disability pension due to conditions she could not possibly fulfil although her health had not changed.
The Grand Chamber found a violation of Article 1 of Protocol No. 1.
(i) The background to the case is therefore the balance to be found between the State’s freedom to change the modalities of social welfare benefits, given budgetary and other constraints, and the need for an individual reliant on social security benefits to have some certainty and security as regards continuing eligibility. The key case-law issue is the applicability of Article 1 of Protocol No. 1 and, notably, the applicant’s “legitimate expectation” to continue to receive a social welfare benefit notwithstanding legislative changes in eligibility criteria. The judgment therefore comprises the first comprehensive review by the Grand Chamber of the case-law on the subject since the principles were recapitulated in Kopecký, cited above (see also Stec and Others, cited above, and Carson and Others v. the United Kingdom).
(ii) For a legitimate expectation to constitute a possession, the Grand Chamber clarified that, notwithstanding the diversity of the expressions in the case-law referring to the requirement of a domestic legal basis generating a proprietary interest, the general tenor of the case-law was that the person had to have “an assertable right” which, applying the Kopecký principle of “a sufficient basis in national law”, may not fall short of “a sufficiently established, substantive proprietary interest under the national law”.
(iii) Applying that “legitimate expectation” case-law in the social welfare context, the Court distinguished a situation where the person concerned did not, or ceased to, satisfy the qualifying conditions from the situation where the domestic legal conditions for the grant of any particular benefit had changed so that the person no longer fully satisfied them.
In the latter context, that of the present case, the Grand Chamber accepted that there could be some limitation on the State’s freedom to legislate. It found that “a careful consideration of the individual circumstances of the case – in particular, the nature of the change in the requirement – may be warranted in order to verify the existence of a sufficiently established, substantive proprietary interest under the national law”. Such were, the Court stated, the demands of legal certainty and the rule of law, which belong to the core values imbuing the Convention.
(iv) On the facts of the case, the applicant was found to have had a possession from 2001 when, having fulfilled all the eligibility conditions, she was granted a disability pension, on the basis of which grant she had a “legitimate expectation” that it would continue as long as she continued to fulfil them. On the particular facts of the case, that legitimate expectation continued to exist until the entry into force of the 2012 law. The enactment of that law did not, of itself, undermine the existence of her “legitimate expectation”, but rather was found to constitute an interference with that legitimate expectation.
(v) The aim of the interference being the legitimate one of “protecting the public purse by overhauling and rationalising the scheme of disability benefits”, the Grand Chamber assessed the proportionality of the interference and gleaned from the existing case-law those elements relevant to that assessment including: the level of reduction in benefits; the discriminatory nature of any loss of entitlement; the use of transitional measures; any arbitrariness of the new condition; the applicant’s good faith; and, importantly, any impairment of the essence of the pension rights. Applying these criteria, the Grand Chamber found, notwithstanding the wide margin of appreciation afforded to States in this field, that the applicant had had to bear an excessive individual burden and that there had been a violation of Article 1 of Protocol No. 1.
Enjoyment of possessions
In the Béláné Nagy judgment, cited above, the Grand Chamber assessed the proportionality of an interference by the authorities in the right to enjoyment of possessions in the form of social-security benefits (see “Applicability” above).
In issue in the judgment in Philippou v. Cyprus was the automatic loss of the applicant’s civil-service pension entitlements following disciplinary proceedings resulting in his dismissal.
The applicant, a civil servant of thirty-three years’ standing, was convicted, among other serious offences, of dishonesty, obtaining money by false pretences and forging cheques. In subsequent disciplinary proceedings, and following a hearing at which the applicant was legally represented, the Public Service Commission imposed on the applicant the most severe of the range of penalties available to it, namely dismissal, which automatically entailed the forfeiture of the applicant’s civil-service pension.
In the Convention proceedings, the applicant complained that the forfeiture of his pension breached Article 1 of Protocol No. 1.
The Court ruled against the applicant. Its finding that there had been no breach of Article 1 was based on its assessment of the concrete impact of the forfeiture on the applicant, having regard to the circumstances of the case. The issue of proportionality was therefore central to the outcome of the case. The Court had previously observed in general (see Da Silva Carvalho Rico v. Portugal and Stefanetti and Others v. Italy) that the deprivation of the entirety of a pension was likely to breach Article 1 of Protocol No. 1 (see, for example, Apostolakis v. Greece) and that, conversely, the imposition of a reduction which it considers to be reasonable and commensurate would not (see, among many other authorities, Da Silva Carvalho Rico, cited above; Arras and Others v. Italy; and Poulain v. France).
Among other factors, the Court gave weight to the following:
(i) The applicant had benefited from extensive procedural guarantees in the disciplinary proceedings, his personal situation was considered in depth in those proceedings and he was able to challenge the forfeiture decision before the Supreme Court at two levels of jurisdiction.
(ii) The disciplinary proceedings followed and were separate from the criminal proceedings.
(iii) The applicant was not left without any means of subsistence since he remained entitled to receive a social-security pension to which he and his employer had contributed.
(iv) A widow’s pension was paid to the applicant’s wife on the assumption that he had died rather than been dismissed.
Weighing the seriousness of the offences committed by the applicant against the effect of the disciplinary measures, the Court found that the applicant had not been made to bear an individual and excessive burden by reason of the forfeiture of his civil-service pension.
Control of the use of property
The judgment in Ivanova and Cherkezov, cited above, concerned the imminent execution of a demolition order and the scope of the protection afforded to the peaceful enjoyment of one’s possessions in that context.
The applicants built a house without planning permission. The local authority served a demolition order on them. The first applicant brought judicial-review proceedings to challenge the lawfulness of the order arguing, among other things, that the execution of the order would entail for her the loss of her only home. The domestic courts ruled against her, finding that the house had been built unlawfully and its construction could not be legalised under the transitional amnesty provisions of the governing legislation.
The Court found that the circumstances of the case gave rise to a breach of Article 8 of the Convention but not to a breach of Article 1 of Protocol No. 1. Its reasoning for so doing is interesting in that it illustrates the difference between the interests protected by both provisions and hence the particular nature of the protection afforded by each of those Articles.
As to the complaint under Article 1 of Protocol No. 1, the Court’s primary concern was to determine whether the implementation of the demolition order would strike a fair balance between the first applicant’s interest in keeping her possessions intact and the general interest in ensuring the effective implementation of the prohibition against building without a permit. This was an area in which States enjoyed a wide margin of appreciation. For the Court, unlike Article 8 of the Convention, Article 1 of Protocol No. 1 did not inevitably require a proportionality-sensitive assessment to be made in each individual case of the necessity of enforcement measures in the planning field. The Court found support for this proposition in James and Others v. the United Kingdom and in its decision in Allen and Others v. the United Kingdom, where it had made similar rulings, albeit in somewhat different contexts. It noted that the intensity of the interests protected under the two Articles, and the resultant margin of appreciation left to the domestic authorities, were not necessarily coextensive. On that understanding, the Court concluded that the demolition order was intended “to put things back in the position in which they would have been if the first applicant had not disregarded the requirements of the law”. The first applicant’s proprietary interest in the house could not outweigh the authorities’ decision to order its demolition. Significantly, the Court also observed that the order and its enforcement would also serve to deter other potential lawbreakers, which was a relevant consideration in view of the apparent pervasiveness of the problem of illegal construction in Bulgaria.
Right to free elections (Article 3 of Protocol No. 1)
The case of Paunović and Milivojević v. Serbia concerned the controlling of parliamentary seats by political parties.
In 2003 the applicants were elected to Parliament for their political party in the general election organised under the proportional representation system, in which votes are for a political party rather than for individual candidates. Before the election all the candidates, including the applicants, had been required by their party to sign undated resignation letters to be entrusted to the party. Those documents also authorised the party to appoint other candidates to replace them if necessary. In early 2006, following political disagreements within the party, the applicants expressly declared, in a signed and authenticated statement of early May, their wish to retain their seats in the National Assembly. In spite of that declaration, ten days later the leader of the party dated the applicants’ resignation letters and remitted them to the President of the Assembly. On the same day, Mr Paunović, producing his authenticated statement from early May, personally informed the parliamentary committee on administrative affairs that he had no intention of resigning and that he considered null and void the resignation letter remitted by the leader of the party. The committee concluded, however, that the two applicants had genuinely resigned and that they were no longer in office. The applicants were replaced by other candidates from the same party.
Mr Paunović took the view that the termination of their office was illegal and that there was no effective remedy by which to complain of the breach of their rights.
For the first time the Court examined the lawfulness under domestic law of the termination of parliamentary office in a context of party control of seats. There are two aspects to be highlighted.
(i) The Court confirmed its long-standing case-law to the effect that Article 3 of Protocol No. 1, in addition to the right to stand for election, also guarantees the right to sit as MP once elected.
(ii) Even though Article 3 of Protocol No. 1 did not expressly require a legal basis for the impugned measure, unlike other Convention Articles, the Court inferred from the principle of the rule of law inherent in the Convention as a whole that there was an obligation for States to introduce a legislative framework and, if need be, an intra-legislative framework, to comply with their Convention obligations.
In the present case, although there was a legal framework, the impugned measure was taken outside it. Under domestic law a resignation had to be handed in personally by the MP. Resignation letters presented by the party were thus illegal. Consequently, there had been a breach of Article 3 of Protocol No. 1.
The Court also found a violation of Article 13 of the Convention taken together with Article 3 of Protocol No. 1.
276. Béláné Nagy v. Hungary [GC], no. 53080/13, ECHR 2016.
277. Kopecký v. Slovakia [GC], no. 44912/98, ECHR 2004-IX.
278. Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, ECHR 2005-X.
279. Carson and Others v. the United Kingdom [GC], no. 42184/05, ECHR 2010.
280. Philippou v. Cyprus, no. 71148/10, 14 June 2016.
281. Da Silva Carvalho Rico v. Portugal (dec.), no. 13341/14, 1 September 2015.
282. Stefanetti and Others v. Italy, nos. 21838/10 and 7 others, 15 April 2014.
283. Apostolakis v. Greece, no. 39574/07, 22 October 2009.
284. Arras and Others v. Italy, no. 17972/07, 14 February 2012.
285. Poulain v. France (dec.), no. 52273/08, 8 February 2011.
286. Ivanova and Cherkezov v. Bulgaria, no. 46577/15, 21 April 2016. See also under Article 8 (Home) above.
287. James and Others v. the United Kingdom, 21 February 1986, § 68, Series A no. 98.
288. Allen and Others v. the United Kingdom (dec.), no. 5591/07, § 66, 6 October 2009.
289. Paunović and Milivojević v. Serbia, no. 41683/06, 24 May 2016.