Last Updated on September 1, 2022 by LawEuro
Information Note on the Court’s case-law 265
August-September 2022
Judgment 1.9.2022 [Section V]
Article 14
Discrimination
No discrimination against convicted prisoner statutorily disqualified from old-age pension payments while incarcerated: no violation
Facts – The applicant, a convicted prisoner, was disqualified from receiving his State Pension (Contributory) (“SPC”) for the duration of his sentence of imprisonment. The disqualification was based on domestic legislation applicable to all persons undergoing imprisonment or detention in legal custody and covering a number of benefits, including the SPC.
The applicant argued before the domestic courts that the impugned legislative provision was incompatible with one or more articles of the Constitution and that the stoppage of his pension was contrary to one or more provisions under the Convention. He appealed up to the Supreme Court, which delivered two judgments, upholding the applicant’s constitutional complaint in the first and providing remedies in the second (namely, a declaration of invalidity of the provision, and damages approximating the value of the pension payments corresponding only to the duration of the appellate proceedings). It did not find it necessary to proceed with a full consideration of the Convention arguments raised by the applicant.
Law – Article 1 of Protocol No. 1: The pension payments withheld from the applicant due to his statutory disqualification from receipt of the SPC, and on account of his imprisonment, could not be regarded as “possessions” within the meaning of this provision. However, they constituted a “proprietary interest” falling within the ambit of the provision and thereby engaging Article 14.
Conclusion: inadmissible (incompatible ratione materiae).
Article 14 in conjunction with Article 1 of Protocol No. 1:
(a) The complaint of age-discrimination – There was no question of a difference in treatment based directly on age: the relevant domestic legislation had applied to many types of benefit available to persons of working age and did not specifically target the SPC. Moreover, the applicant’s claim of indirect discrimination based on age had not been substantiated. He had referred to evidence about how various age-related ailments had rendered him unable to work in prison. However, the evidence required to substantiate a complaint of indirect discrimination against a particular group – here, older prisoners – had to relate to the group as such, rather than just one member of it. The fact that some prisoners in the applicant’s age group had been performing paid work in the same prison rather spoke against the applicant’s complaint of indirect discrimination based on age.
(b) The complaint of discrimination linked to source or level of income – The applicant had complained about the more severe impact of the disqualification from the SPC benefit on prisoners who, like him, had had no other source of income, compared to those who had had additional sources of revenue that had not been stopped or reduced on account of incarceration. While prisoners in the former group had been near-destitute, those in the latter group had had means to improve the quality of their lives in prison, and this, according to the applicant, had disclosed indirect discrimination against those in his situation.
The applicant had argued that a person’s level of income and its source qualified as “other status”. However, his complaint concerned more specifically differing financial entitlements, i.e. under the general social welfare system and other benefit schemes linked to professional activity or private investments. The different impact that the disqualification had had on prisoners with and without other social security entitlements or other forms of income was not related to an aspect of their personal status within the meaning of Article 14. Accordingly, that aspect of the applicant’s complaint of discrimination was not cognisable under that provision.
(c) The complaint of discrimination based on status as a convicted prisoner – The Court recalled that the fact of being a prisoner could constitute “other status” within the meaning of Article 14. It therefore had to establish whether the comparisons put forward by the applicant were valid, i.e. whether he had been in a relevantly similar situation to (i) persons detained for treatment of mental illness; and/or (ii) remand prisoners:
(i) Concerning persons detained for treatment of mental illness, the Court recalled that in S.S. and Others v. the United Kingdom (dec.), it had accepted the comparison between the applicants in that case (conviction for very serious offences, given lengthy sentences then later transferred to secure psychiatric hospitals for treatment) and other psychiatric patients (convicted but sent directly to hospital). However, in the present case, the element of severe mental illness was lacking. Further, in S.S. and Others, both groups had been subject to the criminal process, whereas in the present case, the applicant had sought to establish a comparison with mental patients detained under civil law powers. The defining characteristic of persons placed in psychiatric facilities was that they were patients, not prisoners. Their physical liberty was restricted under civil law for the purpose of treatment; convicted prisoners, by contrast, were detained under criminal law mainly for a punitive purpose. The applicant was therefore not in a relevantly similar situation to persons in this group, given the significant legal and factual differences between them.
(ii) Remand prisoners were closer to the applicant’s situation, in that they were also subject to the criminal process and detained in prison pending trial, and the Court had accepted comparisons, for the purposes of Article 14, between the two categories of prisoner in certain respects. However, elements that characterised each group had to be assessed in light of the subject-matter and purpose of the impugned measure. The defining characteristic of remand prisoners was their status for the purposes of the criminal law – although detained, they were presumed innocent. In cases concerning difference in treatment of remand prisoners vis-à-vis convicted ones, the Court had placed some emphasis on the fact that the applicants had had to be presumed innocent. The difference in legal status was significant: there was neither certainty nor finality about detention on remand, in contrast to the status and situation of a convicted prisoner. The difference was also shown by what the end of detention meant for each category. For the unconvicted, they simply regained their liberty, whereas for the serving prisoner, especially a long-serving prisoner like the applicant, regaining freedom might be more of a process involving rehabilitation efforts, conditional release and social support following return to the community. In light of those considerations, the Court strongly doubted that the subject-matter of the applicant’s complaint (continuity of payment of the social security benefit at issue) could bring the two groups into an analogous position so as to permit the alleged comparison
As to the purpose of the measure, the Supreme Court had found that the disqualification of convicted prisoners had originally been punitive. While the Supreme Court had engaged briefly with the Government’s explanation of the reasons for the impugned disqualification – namely, the avoidance of unjust enrichment in the social welfare system – it had not had to decide the issue. However, the prevention of double maintenance of individuals was an objective which the Commission had previously accepted (Szrabjet and Clarke v. the United Kingdom), and that public interest had found implicit support in the Supreme Court’s approach in its second judgment.
In any event, the Court had identified the above significant differences between the two groups. It further observed that remand prisoners would also have been subject to disqualification from the SPC and other benefits had it not been for an exception in their favour in later domestic legislation. That measure made the distinction between the two groups. The Government had submitted that that exception reflected the fact that persons detained pending trial were presumed innocent.
Remand and convicted prisoners therefore could not be regarded as being in a relevantly similar situation with respect to the continuance of the benefit at issue.
Conclusion: no violation (unanimously).
Article 13 (in conjunction with Article 14 taken together with Article 1 of Protocol No. 1): The applicant’s challenge had been successful and his claim for pecuniary relief had been upheld in part. The fact that the Supreme Court had found it unnecessary to proceed to a full consideration of the Convention arguments raised before it, since it had upheld the applicant’s challenge to the statutory disqualification on another ground relied upon by him, could not, be regarded as an omission on its part. The margin of appreciation granted to domestic authorities in conforming with their Article 13 obligations encompassed the discretion of a domestic court, competent to determine constitutional issues alongside Convention issues, to uphold a challenge to legislation on some but not all of the grounds raised before it.
As to the level of the award of damages, in not accepting the applicant’s claim to recoup in full the unpaid benefits, the Supreme Court had extensively considered the relevant case-law and practice of the Irish courts. Treating the applicant’s pecuniary claim as an automatic consequence would, according to the Supreme Court, have had the effect of creating a new form of legislative entitlement to benefit, not approved by the legislature and moreover plainly running counter to legislative intention. Rather, the features of the case pointed to an obligation to fashion an appropriate remedy and led it to make an award approximating to the value of the pension payments corresponding to the duration of the appellate proceedings.
The Court also recalled that the immediate effect of the Supreme Court’s second judgment was that the applicant had been rendered eligible once more for receipt of the SPC. The applicant had complained that the interval between the two Supreme Court rulings had delayed that remedy and thus diminished its effectiveness. The domestic court could not, however, be criticised for the manner in which it had decided to manage and structure the proceedings. The remedial aspect of the case had thrown up complex issues of constitutional principle that had called for further submissions from the parties and deliberation by the court.
Conclusion: inadmissible (manifestly ill-founded).
(See also Szrabjet and Clarke v. the United Kingdom, 27004/95 and 27011/95, 23 October 1997; Laduna v. Slovakia, 31827/02, 13 December 2011, Legal Summary; Varnas v. Lithuania, 42615/06, 9 July 2013, Legal Summary; S.S. and Others v. the United Kingdom (dec.), 40356/10 and 54466/10, 21 April 2015, Legal Summary, Béláné Nagy v. Hungary [GC], 53080/13, 13 December 2016, Legal Summary)
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