Property Protection and Austerity Measures: Is Strasbourg Backing Off?
Over the past years, the European Court on Human Rights has increasingly dealt with social security under the right to property protection. As complaints about austerity measures start reaching the Court, its approach seems to become more hesitant.
Article 1 of the First Protocol to the European Convention on Human Rights protects the right to the peaceful enjoyment of one’s possessions. What amounts to a ‘possession’ is determined by the European Court of Human Rights in an ‘autonomous’ manner. After having held that contributory benefits and social arrangements can occasionally count as possessions protected under Article 1 P1, the Court in 2005 stated that regardless of the funding method, all social security benefits generate proprietary interests (see Stec and Others v. the UK). Moreover, the Court also held that even if a (non-contributory) benefit is granted erroneously, a possession has nevertheless come about (see Moskal v. Poland). Thus when a benefit is revoked or limited, because its conditions turn out not to have been met, this amounts to an interference with an individual’s right to property protection. Its broad interpretation of ‘possessions’ has allowed the Court to review a wide range of social security issues and check whether these amounted to fundamental rights violations or not.
In a recent article I argued that enlarging the scope of property protection does not always amount to much for applicants, as the review of the Court is often very deferential. According to the Court, ‘a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy’. What this means for applicants is that their cases are generally held admissible and are said to involve interferences with their property rights, while the likelihood that the Court eventually finds a violation is very small. This could bring up the question whether the Court’s interpretation has perhaps been a little too generous and needs to be curtailed, or whether, alternatively, its review should be stricter in order to ensure practical and effective fundamental rights protection.
Some recent Strasbourg cases suggest that the Court is aware of this dilemma and show that it might be willing to narrow down the room for reviewing social security cases. Perhaps not coincidentally, these recent cases concern austerity measures and the room for States to legitimately interfere with existing social arrangements in times of crisis. One could speculate that now the Court is anticipating numerous complaints about salary cuts, pension adjustments and the like, it is developing a somewhat less generous approach in order to discourage potential applicants and prevent itself from having to take a stand on numerous sensitive, political and budgetary austerity measures. First of all, Da Conceição Mateus and Santos Januário v. Portugal concerned two former civil servants who complained about the limiting of the holiday and Christmas subsidies that formed part of their pensions for crisis-related reasons (amounting to a reduction of about 10% of their total pensions) (see also here). Recognizing the need for Portugal to secure the short-term liquidity to the State budget, and given the limited extent and temporary effects of the reductions, the Court concluded that the case was manifestly ill-founded and therefore inadmissible. The same conclusion was reached in Savickas and Others v. Lithuania. There the Court noted that by temporarily reducing judges’ pensions (for the duration of the economic and financial crisis) Lithuania had not overstepped its margin of appreciation. What follows from these cases is that, indeed, when circumstances so demand and measures are not permanent, the Court is not likely to step in.
Finally, in Damjanac v. Croatia, a case that did not concern austerity issues, the Court did find that there had been a violation of the applicant’s property rights as the authorities had stopped his pension payments when he moved to Serbia. However, it did make some interesting statements with regard to the applicability of the right to property protection that could be understood as signaling the desire to somewhat limit the applicability of the Convention to social security issues. It stated that ‘where … the person concerned does not satisfy, or ceases to satisfy, the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1’. Moreover, ‘the fact that a person has entered into and forms part of a State social security system does not necessarily mean that that system cannot be changed either as to the conditions of eligibility of payment or as to the quantum of the benefit or pension’. Thus, not meeting the legal conditions means that Article 1 P1 is not applicable, while on the other hand the conclusion that an applicant satisfied the requirements will be regarded as ‘not in accordance with the law as required under the Convention’. If this is the case there will be no need for the Court to ascertain the proportionality of the measure.
One could arguably read these statements as being in line with the Court’s approach thus far. However, what happens when the applicable conditions are discriminatory or when benefits have been altered very suddenly or significantly? The wording of the Court can also form the stepping stone for holding that changes in pension and other social legislation, even if on the basis thereof pensions will turn out much lower or the level of certain benefits is significantly altered, do not imply an interference with the property rights protected by the Convention. It will be interesting to see what path the Court will take in this regard. Although perhaps not every alteration in social benefits should be considered fundamental enough to amount to an interference in someone’s Convention rights, I would argue that it goes a step too far to hold that in general austerity measures—even if they are of a temporary character—need not be reviewed or protected under the Convention.