CEDH · CASELAW;CLIN;ENG — 7 juillet 2011

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Austria [GC] - 37452/02 Judgment 7.7.2011 [GC] Article 14 Discrimination Refusal to take work performed in prison into account in calculation of pension rights: no violation   Facts –The applicant spent some twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods but was not affiliated to the old-age pension system under the General Social Security Act. However, from 1   January 1994 he was affiliated to the unemployment-insurance scheme in respect of periods worked in prison. His application for an early retirement pension was dismissed by the Workers’ Pension Insurance Office in March 1999 on the grounds that he had failed to accumulate the minimum of 240   insurance months required for pension eligibility. He subsequently brought an action against that Office arguing that the months he had spent working in prison should be counted as insurance months. In April 2001, a labour and social court dismissed his claim. A court of appeal dismissed his appeal after finding that the fact that prisoners were affiliated to the unemployment-insurance scheme since an amendment to the Execution of Sentences Act in 1993 was not conclusive as regards the question of their affiliation to the old-age pension system. In February 2002 the Supreme Court dismissed the applicant’s appeal. After his release from prison in January 2004, the applicant received unemployment benefit for a few months and since then has received emergency relief payments under the Unemployment Insurance Act. Law – Article 14 of the Convention in conjunction with Article   1 of Protocol No.   1: The Court observed that prison work differed from work performed by ordinary employees in many aspects and that it served the primary aim of rehabilitation and resocialisation. Even though prison work was obligatory under Austrian law the Court did not find that factor decisive. What was at issue was the need to provide for old age, in which respect the applicant was in a relevantly similar situation to ordinary employees. In respect of affiliation to the health and accident insurance scheme under the General Social Security Act, however, the applicant’s situation as a working prisoner was different from ordinary employees since prisoners’ health and accident care was provided by the State under the Execution of Sentences Act. The Government had argued that working prisoners often did not have the means to pay social-security contributions and that it would have thus undermined the economic efficiency of the old-age pension system if periods for which no meaningful contributions had been made were counted as insurance periods giving rise to pension entitlements. The overall consistency of the old-age pension system had to be preserved and periods of work in prison could therefore not be counted as qualifying or substitute periods compensating for times during which no contributions had been made. Austrian social-security law provided for that possibility only in a limited number of socially accepted situations, such as child-raising, unemployment or military service. The Court considered the above aims legitimate. The question whether the difference in treatment of working prisoners was proportionate to the legitimate aims pursued was closely linked to the State’s general choice of economic and social policy. In this area the States enjoyed a wide margin of appreciation so the Court would intervene only when the policy choice was without reasonable foundation. Moreover, the question had to be seen as one feature in the overall system of prison work and prisoners’ social cover. There was, however, no European consensus on social security for prisoners. While an absolute majority of Council of Europe member States provided prisoners with some kind of social security, only a small majority affiliated them to their old-age pension system and some of them, like Austria, did so only by giving them the possibility of making voluntary contributions. The applicant worked for lengthy periods in prison. The domestic authorities’ decisions indicated that his periods without insurance cover occurred between the 1960s and the 1990s. At the material time there was no common ground regarding the affiliation of working prisoners to domestic social-security systems. This lack of common ground was reflected in the 1987 European Prison Rules, which did not contain any provision in this regard. Subsequently, the 2006 European Prison Rules recommended including, as far as possible, prisoners who worked in national social-security systems, without referring specifically to old-age pension systems. Austrian law reflected that trend in that all prisoners were to be provided with health and accident care and in that since January 1994 working prisoners were affiliated to the unemployment-insurance scheme. It was significant that the applicant, although not entitled to an old-age pension, was not left without social cover. Following his release from prison he had received unemployment benefit and subsequently emergency relief payments to which he was entitled on account of having been covered by the Unemployment Insurance Act as a working prisoner. When the Court delivered its judgment in his case, the applicant was still receiving emergency-relief payments supplemented by a housing allowance amounting to a total of approximately EUR 720, almost the minimum pension level (approximately EUR 780). In sum, in a context of changing standards, a Contracting State could not be reproached for giving priority to the insurance scheme it considered most relevant for the reintegration of prisoners upon their release. While Austria was required to keep the issue raised by the case under review, the Court found that by not having affiliated working prisoners to the old-age pension system it had not exceeded the wide margin of appreciation afforded to it in that matter. Conclusion : no violation (ten votes to seven). Article 4: The applicant argued that European standards had changed to such an extent that prison work without affiliation to the old-age pension system could no longer be regarded as work required to be done in the ordinary course of detention. Austrian law reflected the development of European law in that all prisoners were provided with health and accident care and working prisoners were affiliated to the unemployment-insurance scheme but not to the old-age pension system. It appeared, however, that there was no sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system. While the 2006 European Prison Rules reflected an evolving trend, this could not be translated into an obligation under the Convention. The Court did not find a basis for the interpretation of Article   4 advocated by the applicant and concluded that the obligatory work he had performed as a prisoner without being affiliated to the old-age pension system had to be regarded as “work required to be done in the ordinary course of detention” within the meaning of Article 4 §   3   (a) of the Convention and did not therefore constitute “forced or compulsory labour”. Conclusion : no violation (sixteen votes to one).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes