CASE OF STUMMER v. AUSTRIA

GRAND CHAMBER

CASE OF STUMMER v. AUSTRIA

(Application no. 37452/02)

JUDGMENT

STRASBOURG

7 July 2011

In the case of Stummer v. Austria,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Jean-Paul Costa, President,
Nicolas Bratza,
Peer Lorenzen,
Françoise Tulkens,
Josep Casadevall,
Corneliu Bîrsan,
Anatoly Kovler,
Elisabeth Steiner,
Alvina Gyulumyan,
Dean Spielmann,
Sverre Erik Jebens,
Dragoljub Popović,
Giorgio Malinverni,
George Nicolaou,
Ann Power,
Kristina Pardalos,
Vincent A. De Gaetano, judges,
and Vincent Berger, Jurisconsult,

Having deliberated in private on 3 November 2010 and on 25 May 2011,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 37452/02) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Ernst Walter Stummer (“the applicant”), on 14 October 2002.

2. The applicant, who had been granted legal aid, was represented by Mr A. Bammer, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

3. The applicant complained that he was discriminated against as he was not affiliated to the old-age pension system as a working prisoner and was consequently deprived of a pension. He relied on Article 4 and, in substance, also on Article 14 of the Convention taken in conjunction either with Article 4 or with Article 1 of Protocol No. 1.

4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 11 October 2007 it was declared admissible by a Chamber of that Section, composed of Christos Rozakis, Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens and Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar. On 18 March 2010 a Chamber of that Section, composed of Christos Rozakis, Anatoly Kovler, Elisabeth Steiner, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and George Nicolaou, judges, and Søren Nielsen, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).

5. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

6. The applicant and the Government each filed further observations on the merits (Rule 59 § 1).

7. A hearing took place in public in the Human Rights Building, Strasbourg, on 3 November 2010 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government
MsB. Ohms,Deputy Agent,
MsI. Köck,Counsel,
MrE. D’Aron,
MsA. Jankovic,Advisers;

(b) for the applicant
MrA. Bammer,Counsel.

The Court heard addresses by Ms Ohms and Mr Bammer, as well as answers by Ms Ohms, Ms Köck and Mr Bammer to questions put by the judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant 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.

9. On 8 February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office (Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”).

10. By a decision of 8 March 1999, the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. A list of the applicant’s insurance periods, running from October 1953 to February 1999, was appended to the decision. According to the list, the applicant had accumulated only 117 insurance months. The list shows lengthy periods during which no contributions were made, in particular from May 1963 to May 1964, from July 1965 to September 1968, from June 1969 to January 1974, from April 1974 to March 1984, from June 1984 to May 1986 and from February 1987 to April 1994. Between May 1994 and February 1999 a number of months, during which the applicant received unemployment benefits or emergency relief payments under the Unemployment Insurance Act, were counted as substitute periods.

11. Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court (Arbeits- und Sozialgericht). He submitted that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights.

12. On 4 April 2001 the Labour and Social Court dismissed the applicant’s claim. It confirmed that the applicant had not completed the required minimum number of insurance months. Referring to section 4(2) of the General Social Security Act, the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme. According to the Supreme Court’s established case-law (judgment no. 10 ObS 66/90 of 27 February 1990 and judgment no. 10 ObS 52/99s of 16 March 1999), their work, corresponding to a legal obligation, differed from work performed by employees on the basis of an employment contract. The difference in treatment under social security law did not disclose any appearance of discrimination.

13. The applicant, now assisted by counsel, appealed. He argued in particular that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified. Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view, there was no reason not to affiliate them to the old-age pension system.

14. On 24 October 2001 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. It held that the Labour and Social Court had correctly applied the law. According to the Supreme Court’s established case-law, prisoners performing obligatory work were not to be treated as employees within the meaning of section 4(2) of the General Social Security Act and were therefore not affiliated to the compulsory social insurance scheme. The fact that, since the 1993 amendment to the Unemployment Insurance Act, prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old-age pension system. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners. In that connection, the Court of Appeal noted that it did not share the applicant’s doubts regarding the possible unconstitutionality of working prisoners’ non-affiliation to the old-age pension scheme.

15. On 12 February 2002 the Supreme Court (Oberster Gerichtshof) dismissed an appeal on points of law by the applicant. Its judgment was served on the applicant on 6 May 2002.

16. On 29 January 2004 the applicant completed his last prison term. Subsequently, he received unemployment benefits until 29 October 2004 and, upon their expiry, emergency relief payments (Notstandshilfe). According to his counsel’s submissions at the hearing, the applicant currently receives some 720 euros (EUR) per month (composed of EUR 15.77 per day plus EUR 167 per month in emergency relief payments and EUR 87 as an allowance towards his rent expenses).

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The General Social Security Act

17. The basis of the Austrian social security system is laid down in two laws: the General Social Security Act (Allgemeines Sozialversicherungsgesetz) and the Unemployment Insurance Act (Arbeitslosenversicherungsgesetz). Austrian social security law is based on the contributory principle.

1. General rules

18. The General Social Security Act encompasses health and accident insurance and old-age pension.

19. Section 4 of the General Social Security Act regulates compulsory affiliation to the social security system. Pursuant to section 4(1)(1), employees are affiliated to the health and accident insurance scheme and to the old-age pension scheme. Section 4(2) defines an employee as any person working in consideration of remuneration in a relationship of personal and economic dependency. A further condition for compulsory affiliation is that the salary exceeds the marginal earnings threshold (Geringfügigkeits-grenze). At current levels, this amount is set at EUR 366.33 per month (section 5(2)).

20. For an employee affiliated to the social security system, compulsory contributions have to be paid in part by the employer and in part by the employee.

21. Section 17(1) provides that persons who are no longer covered by compulsory affiliation to the social security system may continue to pay voluntary contributions (freiwillige Weiterversicherung) if they have accumulated at least twelve insurance months out of the previous twenty‑four months within the system or at least three insurance months during each of the previous five years. Contributions can be reduced within certain limits if the economic circumstances of the person concerned justify such a reduction.

22. Entitlement to an old-age pension arises when a person who has reached pensionable age has accumulated a sufficient number of insurance months, namely a minimum of 180 months or, in the case of an early retirement pension, 240 months. When calculating the number of insurance months, certain periods during which no gainful activity has been pursued, and thus no contributions were made, are nevertheless taken into account as substitute periods (Ersatzzeiten), for instance periods of child-rearing, military service or unemployment.

23. The amount of an old-age pension depends mainly on the number of insurance months and the level of contributions paid. If the pension thus calculated does not reach a certain minimum level, which at current rates is EUR 783.99 per month for a single person and EUR 1,175.45 for a couple, a supplementary payment (Ausgleichszulage) is added in order to reach the minimum level.

2. Position of prisoners

24. During a prison term exceeding one month, entitlements to health, accident and pension insurance are suspended (section 78 of the General Social Security Act). The livelihood of prisoners is to be provided by the prison authorities. Likewise, their health care and care in case of an accident have to be provided for by the State in accordance with the Execution of Sentences Act (see paragraphs 41 and 44 below).

25. As a matter of principle, working prisoners are not affiliated to the general social insurance system. According to the Supreme Court’s case-law, prisoners performing work are not treated as employees within the meaning of section 4(2) of the General Social Security Act.

26. In a judgment of 27 February 1990 (no. 10 ObS 66/90), the Supreme Court examined an appeal by a former prisoner against a decision refusing him an invalidity pension on the ground that he had not accumulated the requisite number of insurance months. The Supreme Court ruled as follows:

“According to the unanimous legal opinion of the competent Federal Ministry (Collection of Publications in Social Insurance Matters, SVSlg 19.570), the Administrative Court (2 February 1972, 782/71 and 62/72, VwSlgNF 8162 = SVSlg 21.171) and the Vienna Court of Appeal (SVSlg 8.868, 21.172, 26.918, 30.930 and 32.418), this work, which is performed on the basis of a statutory rather than a voluntarily accepted duty to work, does not fall within the scope of the compulsory insurance scheme. Legal commentators also favour the interpretation that social insurance law, like labour law, requires that employment contracts be established voluntarily. Services rendered compulsorily under public law are not based on any service contract. Accordingly, work performed in the context of execution of a sentence cannot be subsumed within section 4(2) of the General Social Security Act (see Krejci-Marhold in Tomandl, SV-System 3. ErgLfg 46; MGA ASVG 49, ErgLfg 125; Krejci in Rummel, ABGB § 1151 Rz 16). In its judgment of 26 November 1971 (B 128/71, VfSlg 6582 = SVSlg 21.170), the Constitutional Court held that the decision of the legislature that work performed in the context of execution of a prison sentence did not fall within the social insurance scheme – because the requisite voluntary acceptance of a specific duty to work required in order to make out a contract of employment necessitating the payment of social insurance contributions was absent – did not infringe the principle of equal treatment.

...

The medical care due to prisoners in accordance with sections 66 et seq. of the Execution of Sentences Act and the benefits due to them, in accordance with sections 76 et seq. of that Act, after work-related accidents or illnesses within the meaning of section 76(2-4) of that Act, provide to this category of persons a statutory health and accident insurance scheme adapted to the prison context.

The fact that prisoners also, in the context of their duty to work – other than, for example, in the context of an employer-employee relationship – are not covered by compulsory insurance under the statutory pension scheme is justifiable on grounds of the above-mentioned substantive differences in relationship and accordingly – as held by the Constitutional Court in its judgment – does not infringe the principle of equal treatment.

Periods spent in pre-trial detention or serving a prison sentence or in preventive detention will, in accordance with the General Social Security Act, only be regarded as compulsory contributory periods if the custodial measures have been imposed either on political grounds – other than national socialist activity – or on religious grounds or on grounds of descent (section 500 and section 502(1)) or if an Austrian court (in accordance with the Compensation (Criminal Proceedings) Act) has given a binding decision in respect of the periods of detention recognising a claim for damages for the detention or conviction (section 506a). Such periods of time, regarded as valid compulsory contributory periods, are to be regarded in the first-mentioned case as not requiring the payment of contributions (section 502(1), third sentence); in the second-mentioned case, the Federal State shall pay the corresponding contributions to the relevant insurance institution (section 506a, second sentence). The purpose in both cases is to compensate for the disadvantages incurred under social insurance law that have arisen on socially acceptable grounds rather than deprivation of liberty on grounds of guilty conduct. An extension of these exceptional provisions to time served in detention on grounds of culpable conduct would be contrary to the principle of equal treatment. Recognition of such periods of time as substitute periods would also be contrary to the principle of equal treatment, for similar reasons. ... Prisoners to whom the above-mentioned exceptions under section 502(1) and section 506a do not apply shall not thereby accumulate, in the context of their duty to work, either contributory periods under the compulsory insurance scheme or substitute periods. They are not, however, prevented by the execution of the sentence from continuing to make contributions to the old-age pension insurance scheme under section 17 and accumulating contributory periods through the payment of voluntary contributions, whereby continued insurance, at the request of the contributor, as far as this appears justified on the basis of his or her economic situation, shall be permitted, in accordance with section 76a(4), at a lower contribution level than the one provided for in subsections (1-3) of that provision. In accordance with section 75(3) of the Execution of Sentences Act, prisoners are to be informed of the possibilities and advantages of, inter alia, optional continued insurance, and they are also permitted to use funds for the payment of contributions to the social insurance scheme which are not otherwise available to them during execution of their sentence. By virtue of the very flexible continued insurance (see section 17(7-8)) – particularly in respect of the beginning, end and determination of the contributory months – a prisoner can also accumulate further contributory months in order to make up the qualifying period and/or obtain a higher pensions increment. In this connection, the fact should not be overlooked that if one were to proceed on the basis that a prisoner is covered under the invalidity and old-age pension insurance scheme in respect of work done during the execution of the sentence, contributions would accordingly have to be made for the relevant periods. Other than under section 506a, according to which the Federal State has to pay the contributions corresponding to these contributory periods (as part of the criminal compensation scheme) to the relevant insurance institution, a State contribution would not be reasonable here. ... It would not be reasonable in such cases to expect the community of insured persons to accept that periods for which no contributions have been made should give rise to pension entitlements; prisoners would have to make such contributions, so the position would not be essentially different from optional insurance. Accordingly, if the legislature has decided that work done in the context of a prisoner’s duty to work cannot fundamentally give rise to compulsory contributory periods or substitute periods and, in the light of that, has made provision only for the above-mentioned exceptions, that decision is based on objective considerations.

Accordingly, the Supreme Court has no doubts regarding the constitutionality of the statutory provisions applicable to the present case.”

27. In a judgment of 16 March 1999 (no. 10 ObS 52/99s) the Supreme Court confirmed its previous judgment.

28. For the purpose of calculating entitlement to an old-age pension, periods spent in prison are only taken into consideration in specific circumstances defined in the General Social Security Act. For instance, periods spent in prison for which compensation has been granted under the Compensation (Criminal Proceedings) Act (Strafrechtliches Entschädigungsgesetz) are counted as substitute periods.

B. The Unemployment Insurance Act and relevant practice

29. Employees are also affiliated to the unemployment insurance scheme. Compulsory contributions have to be paid in part by the employer and in part by the employee.

30. Since the 1993 amendment to the Unemployment Insurance Act, prisoners who perform work in accordance with section 44(1) of the Execution of Sentences Act are affiliated to the unemployment insurance scheme pursuant to section 66a of the Unemployment Insurance Act. The employee’s part of the contributions is to be paid from the prisoner’s remuneration, if the remuneration exceeds the marginal earnings threshold, while the employer’s part is to be paid by the State, through the Ministry of Justice. The amendment came into force on 1 January 1994.

31. As regards the amendment to the law, which formed part of a broader reform of the system of execution of sentences, the Parliamentary Judicial Committee (Justizausschuß) considered the affiliation of working prisoners to the unemployment insurance scheme to constitute a first step towards their full integration into the social security system. The Judicial Committee underlined that affiliating working prisoners to the unemployment insurance scheme was an important step towards increasing their chances of reintegration into society and limiting the prospect of recidivism (see p. 1253 of the annex to the minutes of the National Council (Beilagen zu den Stenographischen Protokollen des Nationalrates, XVIII.GP).

32. Entitlements under the Unemployment Insurance Act include access to training courses, job-search facilities, and payment of unemployment benefits (which, to a certain extent, are related to previous salary) for a certain period. Upon the expiry of unemployment benefits, the insured person is entitled to payment of emergency relief, which is designed to provide a minimum amount of subsistence. Emergency relief will continue to be paid after a person has reached pensionable age if no entitlement to a pension is granted.

33. At the hearing, the Government provided the following information on the percentage of working prisoners and prisoners receiving unemployment benefits following their release.

(a) In 2009, 12,460 persons were detained, of whom 8,903 (approximately 71%) were working and thus covered by unemployment insurance. Only 2,490 of these working prisoners actually paid contributions as they earned more than the required minimum level, and the others did not have to pay contributions.

(b) Between 1 January and 30 June 2010, 9,477 persons were detained, of whom 6,791 (approximately 71%) were working and thus covered by unemployment insurance. Only 1,879 of these working prisoners actually paid contributions as they earned more than the required minimum level per month, and the others did not have to pay contributions.

(c) Between 1 January 2009 and 30 June 2010, 2,086 persons qualified to receive unemployment benefits on account of the fact that they were included in the unemployment insurance scheme during their prison term; 1,898 of them applied for unemployment benefits upon their release, receiving an average benefit of EUR 21.09 per day (the general average being EUR 26.90 per day).

C. Social assistance

34. Social security is complemented by means-tested social assistance. The latter is designed to provide persons who do not have the necessary means (personal means or entitlements from old-age pension insurance or unemployment insurance) with a minimum income in order to meet their basic needs.

35. On 1 September 2010 a new system, namely the means-tested minimum income scheme (bedarfsorientierte Mindestsicherung), came into force, replacing social assistance. It guarantees a minimum income to all persons who are willing and able to work or who are over 65 years old and do not have other means of subsistence. The amount is aligned with the minimum pension.

D. The Execution of Sentences Act and relevant practice

36. Pursuant to section 44(1) of the Execution of Sentences Act (Strafvollzugsgesetz), any prisoners who are fit to work are obliged to perform work assigned to them.

37. Section 45(1) of the Act obliges the prison authorities to provide each prisoner with useful work. Section 45(2) specifies the different kinds of work which may be assigned to prisoners. They include, inter alia, tasks to be carried out within the prison, work for public authorities, work for charities, and work for private employers.

38. Under section 46(3), the prison authorities may conclude contracts with private enterprises as regards prisoners’ work.

39. Pursuant to section 51, the Federal State (der Bund) receives the proceeds of prisoners’ work.

40. Prisoners who perform their work satisfactorily have a right to remuneration. The amounts of remuneration – per hour and type of work – are fixed in section 52(1). At current rates, they are as follows:

(a) for light unskilled workEUR 5.00

(b) for heavy unskilled workEUR 5.63

(c) for manual workEUR 6.26

(d) for skilled workEUR 6.88

(e) for work performed by a skilled workerEUR 7.50

41. The prison authorities have to provide for the livelihood of prisoners (section 31).

42. Pursuant to section 32 of the Act, all prisoners have to contribute to the costs of the execution of their sentence unless they fall within the scope of certain exceptions. If the prisoner works, the contribution amounts to 75% of his or her remuneration. It is deducted automatically from the remuneration.

43. Moreover, the employee’s part of the contribution to the unemployment insurance scheme is deducted from the prisoner’s remuneration. The remainder of the prisoner’s remuneration is used as follows: half of it is given to the prisoner as “pocket money” and the other half is kept as savings which the prisoner receives upon release (section 54).

44. Health and accident care for prisoners is to be provided by the prison authorities pursuant to sections 66 et seq. and 76 et seq. of the Execution of Sentences Act. In essence, the entitlement to health and accident care corresponds to the entitlement under the General Social Security Act.

45. If prisoners refuse the work assigned to them, this constitutes an offence under section 107(1)(7) of the Execution of Sentences Act. The penalties set out in section 109 range from a reprimand, or a reduction or withdrawal of certain rights (for instance, the right to use “pocket money”, to watch television, to send and receive correspondence or telephone calls), to a fine or house arrest (solitary confinement).

46. According to the information provided by the Government, more than 70% of prisoners in Austria are currently working. Owing to the requirements of prison routine, the average working day is approximately six hours. However, time spent by a prisoner undergoing therapeutic or social treatment is regarded and remunerated as working time up to a maximum of five hours per week.

III. RELEVANT INTERNATIONAL MATERIALS

A. United Nations instruments

1. The Forced Labour Convention (No. 29) of the International Labour Organization

47. The Forced Labour Convention (No. 29) (“ILO Convention No. 29”) was adopted on 28 June 1930 by the General Conference of the International Labour Organization (ILO) and came into force on 1 May 1932. The relevant parts of Article 2 provide as follows:

“1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include:

...

(c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;

...”

The International Labour Conference (the annual meeting of member States of the ILO) at its ninety-sixth session in 2007, carried out a general survey concerning ILO Convention No. 29 based on a report of the Committee of Experts on the Application of Conventions and Recommendations (“the Committee”).

The report dealt, inter alia, with the question of prison work for private enterprises. Noting that prison work for private employers was prohibited by Article 2 § 2 (c) of ILO Convention No. 29, the Committee found that there might be conditions in which, notwithstanding their captive circumstances, prisoners could be considered to have offered themselves voluntarily and without the menace of any penalty for work with a private employer. In this connection, apart from the formal written consent of the prisoner, conditions approximating a free labour relationship (in terms of wage levels, social security and occupational safety and health) were regarded to be the most reliable indicator of the voluntariness of labour. If such conditions were met, prison work for private enterprises was considered not to come under the definition of forced labour provided in Article 2 § 1 and, consequently, was considered to fall outside the scope of ILO Convention No. 29 (paragraphs 59-60 and 114-16 of the Committee’s report).

2. The International Covenant on Civil and Political Rights

48. The International Covenant on Civil and Political Rights was adopted on 16 December 1966 by United Nations General Assembly Resolution 2200A (XXI) and came into force on 23 March 1976. The relevant parts of Article 8 read as follows:

“3. (a) No one shall be required to perform forced or compulsory labour;

(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;

(c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include:

(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;

...”

B. Council of Europe materials

1. The European Prison Rules

49. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by the Rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates.

(a) The 1987 European Prison Rules

50. The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted by the Committee of Ministers of the Council of Europe on 12 February 1987.

51. In Part I, the 1987 Rules contained a number of basic principles, including the following:

“1. The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human dignity and are in conformity with these rules.

...

3. The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release.

...”

52. In Part IV, under the heading “Treatment objectives and regimes”, they contained the following rules:

“64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.

65. Every effort shall be made to ensure that the regimes of the institutions are designed and managed so as:

(a) to ensure that the conditions of life are compatible with human dignity and acceptable standards in the community;

(b) to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self-respect or sense of personal responsibility of prisoners;

...”

53. Also in Part IV, under the heading “Work”, they contained the following rules:

“71.1. Prison work should be seen as a positive element in treatment, training and institutional management.

71.2. Prisoners under sentence may be required to work, subject to their physical and mental fitness as determined by the medical officer.

71.3. Sufficient work of a useful nature, or if appropriate other purposeful activities, shall be provided to keep prisoners actively employed for a normal working day.

71.4. So far as possible the work provided shall be such as will maintain or increase the prisoner’s ability to earn a normal living after release.

...

72.1 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community so as to prepare prisoners for the conditions of normal occupational life. ...

...

74.1. Safety and health precautions for prisoners shall be similar to those that apply to workers outside.

74.2. Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to workers outside.

...

76.1. There shall be a system of equitable remuneration of the work of prisoners.”

(b) The 2006 European Prison Rules

54. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”.

55. Part I of the 2006 Rules contains the following basic principles, inter alia:

“2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.

3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.

...

5. Life in prison shall approximate as closely as possible the positive aspects of life in the community.

6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.”

The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems ) notes that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights, so that restrictions should be as few as possible. The commentary observes that Rule 5 underlines the positive aspects of normalisation, recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”.

56. In Part II (“Conditions of imprisonment”), Rule 26 of the 2006 Rules deals with the various aspects of prison work. The relevant parts thereof read as follows:

“26.1 Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment.

26.2 Prison authorities shall strive to provide sufficient work of a useful nature.

26.3 As far as possible, the work provided shall be such as will maintain or increase prisoners’ ability to earn a living after release.

...

26.7 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community in order to prepare prisoners for the conditions of normal occupational life.

...

26.9 Work for prisoners shall be provided by the prison authorities, either on their own or in cooperation with private contractors, inside or outside prison.

26.10 In all instances there shall be equitable remuneration of the work of prisoners.

...

26.13 Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside.

26.14 Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside.

...

26.17 As far as possible, prisoners who work shall be included in national social security systems.”

The commentary on Rule 26 underlines the principle of normalisation of prison work in that provisions for health, safety, working hours and “even involvement in national social security systems” should reflect those for workers on the outside. In contrast, the 1987 Rules, although they contain the notion of normalisation of prison work, are silent on the question of prisoners’ inclusion in national social security systems.

57. Part VIII of the 2006 Rules, entitled “Sentenced prisoners”, contains further rules regarding the objective of the regime for sentenced prisoners:

“102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.

102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.”

58. It also deals with work as one aspect of the regime for sentenced prisoners. The relevant parts of Rule 105 provide as follows:

“105.2 Sentenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner.

105.3 If sentenced prisoners are required to work, the conditions of such work shall conform to the standards and controls which apply in the outside community.”

2. The European Social Charter

59. The European Social Charter, a Council of Europe treaty which was adopted in 1961 and revised in 1996, is also of some relevance in the present context. Article 1, dealing with the right to work, provides:

“With a view to ensuring the effective exercise of the right to work, the Parties under­take:

1. to accept as one of their primary aims and respon­sibili­ties the achieve­ment and maintenance of as high and stable a level of employ­ment as possible, with a view to the attainment of full employment;

2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon;

...”

The European Committee of Social Rights, the body responsible for monitoring States Parties’ compliance with the European Social Charter, has interpreted Article 1 § 2 to mean that prison work must be strictly regulated, in terms of pay, working hours and social security, particularly if prisoners are working for private firms. Prisoners may only be employed by private enterprises with their consent and in conditions as similar as possible to those normally associated with a private employment relationship (see Digest of the Case Law of the European Committee of Social Rights, 1 September 2008, p. 23).

C. Comparative European law

60. From the information available to the Court, including a survey on comparative law taking into account the national laws of forty out of the forty-seven member States of the Council of Europe, it would appear that

(a) in twenty-five member States, prisoners are, at least in some circumstances, required to work, namely Azerbaijan, the Czech Republic, Estonia, Finland, Georgia, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Montenegro, Russia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom;

(b) twenty-two member States give prisoners access to the old-age pension system, namely Albania, Andorra, Azerbaijan, Croatia, Cyprus, the Czech Republic, Finland, France, Ireland, Italy, Latvia, Lithuania, Norway, Portugal, Russia, Slovakia, Slovenia, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom. In some of these States, prisoners are not automatically covered by the insurance scheme (by way of compulsory contributions or tax deduction) but only have the possibility of paying voluntary contributions;

(c) in twelve member States, prisoners are not covered by an old-age pension scheme, namely Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Georgia, Greece, Hungary, Malta, Montenegro, the Netherlands, Romania and Serbia;

(d) in a third group of member States, affiliation to the social security system (including old-age pension) depends on the type of work performed, mainly on whether it is work for outside employers/remunerated work or not. This is the case in Germany, Luxembourg, Poland, Spain and Sweden. In Denmark, entitlement to an old-age pension is not related to work and payment of contributions. All persons of pensionable age are entitled to receive a basic pension; and

(e) thirty-seven member States, that is, an absolute majority, provide prisoners, or at least certain categories of prisoners, with some access to social security protection, either by affiliating them to the general social security system or parts of it, or by providing them with a specific type of insurance or other protection.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1

61. The applicant complained that the exemption of those engaged in prison work from affiliation to the old-age pension system was discriminatory. He relied in substance on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.

62. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

63. Article 1 of Protocol No. 1 provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. The parties’ submissions

1. The applicant

64. The applicant referred to the principle that deprivation of liberty was a punishment in itself and that measures concerning a prisoner should not aggravate the suffering inherent in imprisonment. He argued that the exclusion of working prisoners from affiliation to the old-age pension system was contrary to that principle as it produced long-term effects going beyond the serving of the prison term.

65. Furthermore, he asserted that working prisoners were in the same situation as other employees as regards the need to provide for their old age through social insurance. The domestic courts’ interpretation of section 4(2) of the General Social Security Act, namely that a distinction had to be drawn between voluntary work on the basis of a regular employment contract and prisoners’ work performed in fulfilment of their statutory obligation to work, was not a convincing reason for their exclusion from affiliation to the old-age pension system.

66. The two situations were not fundamentally different in the applicant’s submission. In reality, the vast majority of people at liberty were also obliged to work, if not by law, by the necessity of earning a livelihood. Work, whether performed in or outside the prison context, always served a variety of purposes going beyond the financial aspect of remuneration. The types of work performed by prisoners were not fundamentally different from the types of work performed by other persons. In sum, the exclusion of working prisoners from affiliation to the old-age pension system was not based on any factual difference and therefore required justification.

67. In the applicant’s view, no such justification existed. Firstly, the exclusion of working prisoners from affiliation to the old-age pension system did not serve any legitimate aim. In so far as the Government had referred to the strained financial situation of the social security system, mere budgetary considerations could not suffice to exclude a vulnerable group from social protection.

68. Secondly, the applicant maintained that the Government had not shown objective and reasonable grounds for the difference in treatment. In particular, he contested the Government’s argument that working prisoners could not pay meaningful contributions and that counting periods of prison work as insurance periods would therefore grant prisoners an unjustified privilege as compared to regular employees who had to pay full social security contributions. Since, pursuant to section 51 of the Execution of Sentences Act, the State received the proceeds from the work of prisoners, it could reasonably be expected to pay social security contributions. The Government’s further argument as to whether or not periods of detention could justifiably be regarded as substitute periods was therefore of no relevance.

69. In respect of the possibility for prisoners to make voluntary contributions to the pension scheme under section 17 of the General Social Security Act, the applicant argued that many prisoners did not fulfil the requirement of having accumulated a sufficient number of insurance months in previous periods. Moreover, the costs of voluntary insurance normally exceeded the limited financial resources of prisoners, as 75% of their modest remuneration for work was used as a contribution to the costs of serving their sentence, pursuant to section 32 of the Execution of Sentences Act.

2. The Government

70. The Government argued first and foremost that the non-affiliation of working prisoners to the old-age pension system was not discriminatory within the meaning of Article 14 of the Convention, as working prisoners were not in an analogous situation to regular employees.

71. They gave a detailed description of the organisation of prison work in Austria, underlining that prison work served the primary purpose of reintegration and resocialisation. They noted that the relevant Council of Europe standards, as well as the latest report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in respect of Austria, acknowledged the importance of work for providing prisoners with an opportunity to preserve or improve their professional qualifications, giving them a purposeful activity and a structured daily routine to make their prison term more bearable and preparing them to take up regular employment after release.

72. Prisoners were obliged to work pursuant to section 44(1) of the Execution of Sentences Act and prison authorities were under an obligation to provide them with suitable work in accordance with section 45(1) of that Act. On account of prison conditions, prisoners worked an average of six hours per day. Although this was not required by any provision of the Convention, prisoners received remuneration. The amounts were fixed by law and varied between EUR 5.00 and EUR 7.50 per hour according to the type of work performed. Periods spent by prisoners undergoing therapeutic or social treatment were regarded as working hours up to a maximum of five hours per week. This was clearly a beneficial form of treatment, underlining that resocialisation was the aim of prison work. The fact that part of the remuneration was used as a maintenance contribution was not at variance with the Convention.

73. In sum, regarding its nature and aim, prison work differed considerably from regular employment. The former, corresponding to a statutory obligation, was geared to resocialisation and reintegration, while the latter was based on an employment contract and served the purpose of securing a person’s subsistence and professional advancement. Consequently, treating periods of prison work differently for the purpose of old-age pension insurance was not only justified but was required by the different factual situation. Counting periods for which no contributions were made as insurance periods would give working prisoners an unjustified advantage over regular employees.

74. The legislature’s decision not to count periods during which a prisoner worked as qualifying or substitute periods was likewise based on objective reasons in the Government’s submission. Under the relevant provisions of the General Social Security Act, periods spent in prison were, inter alia, treated as qualifying periods if the person concerned had been granted compensation in respect of the detention under the Compensation (Criminal Proceedings) Act. In that case, the State had to pay the social security contributions in order to compensate the person concerned for disadvantages suffered under social security law as a result of the detention. To treat persons who were lawfully imprisoned in the same way would lead to equal treatment of unequal facts. To treat periods spent in detention as substitute periods, without payment of contributions, would also create imbalances in the social security system. Generally, the legislature considered that substitute periods were periods during which persons were prevented from making contributions on socially accepted grounds, such as school education, childbirth, unemployment, illness, military or alternative military service.

75. Moreover, it was open to prisoners to make voluntary contributions to the old-age pension system under section 17 of the General Social Security Act. That Act also provided for the possibility of reducing the amount to be paid to a lower level than that of normal contributions. However, the Government stated that, for data protection reasons, they were unable to provide statistical data on the number and proportion of prisoners making use of this possibility.

76. In the alternative, the Government argued that even assuming that working prisoners were in an analogous situation to regular employees, the difference in treatment was justified. In practice, even if prisoners were not excluded from affiliation to the old-age pension system, they would not be able to make meaningful contributions, as very often their remuneration, after deduction of the maintenance contribution, would not reach the threshold of EUR 366.33 of so-called “marginal earnings”, below which employees were in any case not covered by compulsory insurance under the General Social Security Act. Given the strained financial situation of the social security institutions, only persons who were able to make meaningful contributions could be included in the old-age pension system.

77. Moreover, Contracting States enjoyed a wide margin of appreciation in the organisation of their social security systems. Even the 2006 European Prison Rules only recommended that “[a]s far as possible, prisoners who work shall be included in national social security systems”.

78. The Government explained that since the 1993 amendment to the Unemployment Insurance Act, working prisoners had been affiliated to the unemployment insurance scheme. This amendment, which was part of a broader reform of the system of execution of sentences, had been preceded by years of intensive discussion. The decision to integrate prisoners into the unemployment insurance scheme but not the old-age pension scheme was motivated by the consideration that unemployment insurance, which encompassed not only financial benefits but access to training courses and job-finding services, was the most effective instrument for furthering prisoners’ reintegration after release. It had been seen as a first step towards including them in the social security system at large. However, as insurance under the General Social Security Act encompassed health and accident insurance plus affiliation to the old-age pension system, and prisoners’ health care and accident insurance were provided for by the prison authorities under the Execution of Sentences Act, their affiliation to the old-age pension scheme would have necessitated more complex amendments. Moreover, according to studies carried out at the time, it was considered to be the most cost-intensive factor.

79. In addition, the Government pointed out that cases such as the present one with very lengthy prison terms were extremely rare. The majority of prisoners were in a position to accumulate a sufficient number of insurance months on account of the periods worked outside prison. In the present case, the applicant had received unemployment benefits and, since their expiry, had continued to receive emergency relief payments.

80. Finally, the Austrian legislature’s decision thus far not to affiliate prisoners to the old-age pension scheme provided for in the General Social Security Act did not mean that they did not enjoy any social cover. Firstly, as stated above, they were covered by the unemployment insurance scheme. Consequently, they received unemployment benefits and, upon their expiry, emergency relief payments. As a last resort, the system of social assistance provided a means-tested minimum income for persons who could not cover their basic needs by any other means. In sum, the Austrian legal system provided for a differentiated and well-balanced solution taking into account the interests of society at large on the one hand and the interests of prisoners on the other hand.

B. The Court’s assessment

1. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1

81. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the provisions in question. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and its Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 39-40, ECHR 2005‑X; Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009; and, most recently, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010).

82. According to the Court’s established case-law, the principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to welfare benefits. In particular, this Article does not create a right to acquire property. It places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements (see Stec and Others (dec.), cited above, § 54; Andrejeva, cited above, § 77; and Carson and Others, cited above, § 64).

83. Moreover, in cases such as the present one, concerning a complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question (see Gaygusuz v. Austria, 16 September 1996, § 40, Reports of Judgments and Decisions 1996‑IV, and Willis v. United Kingdom, no. 36042/97, § 34, ECHR 2002‑IV). Although Article 1 of Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see Stec and Others (dec.), cited above, § 55, and Andrejeva, cited above, § 79).

84. In the present case, the applicant, having reached pensionable age, claimed an old-age pension which is due as of right on condition that a minimum number of insurance months have been accumulated. The Court considers that the social security legislation at issue creates a proprietary interest falling within the scope of Article 1 of Protocol No. 1. Applying the test whether the applicant would have had an enforceable right to receive a pension had it not been for the condition of entitlement he alleges to be discriminatory, the Court notes that it is undisputed that the applicant had worked for some twenty-eight years in prison without being affiliated to the old-age pension system. His request for an old-age pension was refused on the ground that he lacked the required minimum number of insurance months. It follows that, had he been affiliated to the old-age pension system for work performed in prison, he would have accumulated the necessary number of insurance months and would consequently have been entitled to a pension.

85. The Government did not contest the applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Nevertheless, they argued that the applicant’s income as a prisoner was insufficient for him to pay contributions to the old-age pension system: following deduction of the maintenance contribution, his remuneration did not exceed the marginal earnings threshold below which any employee was exempted from compulsory insurance under the General Social Security Act. The Court considers that this argument, which is itself intrinsically linked to the applicant’s position as a prisoner, cannot invalidate the conclusion reached above.

86. In conclusion, the Court finds that the applicant’s claims fall within the scope of Article 1 of Protocol No. 1 and the right to peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 applicable.

2. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1

(a) General principles

87. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Carson and Others, cited above, § 61). Discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (ibid.; see also Andrejeva, cited above, § 81, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006‑VI).

88. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background. Thus, for example, Article 14 does not prohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, in the absence of an objective and reasonable justification, give rise to a breach of Article 14 (see Andrejeva, cited above, § 82; Stec and Others, cited above, § 51; and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000‑IV).

89. Similarly, a wide margin of appreciation is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Andrejeva, cited above, § 83; Stec and Others, cited above, § 52; Carson and Others, cited above, § 61; and, in the specific context of prisoners’ rights, see also Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007‑V).

(b) Application of these principles to the present case

90. The applicant complains of discrimination on account of his position as a prisoner. Although being a prisoner is not one of the grounds explicitly mentioned in Article 14, the list set out in this Article is not exhaustive and includes “any other status” (or “toute autre situation” in the French text) by which persons or groups of persons are distinguishable from each other. It has not been disputed in the present case that being a prisoner is an aspect of personal status for the purposes of Article 14.

(i) Whether the applicant as a working prisoner was in a relevantly similar situation to regular employees

91. The Court will first examine whether, in respect of affiliation to the old-age pension system under the General Social Security Act, the applicant as a working prisoner was in a relevantly similar situation to regular employees.

92. The Government laid much emphasis on the differences in aim and nature between prison work and regular employment. They underlined that prison work served the primary aim of rehabilitation and pointed to its obligatory nature, arguing that these features set the applicant’s situation apart from that of ordinary employees. For his part, the applicant asserted that the obligatory nature of prison work was not decisive in the present context and that the type of work performed by prisoners did not differ in any way from the work performed by ordinary employees.

93. The Court observes that prison work differs from the work performed by ordinary employees in many aspects. It serves the primary aim of rehabilitation and resocialisation. Working hours, remuneration and the use of part of that remuneration as a maintenance contribution reflect the particular prison context. Moreover, in the Austrian system, prisoners’ obligation to work is matched by the prison authorities’ obligation to provide them with appropriate work. Indeed, that situation is far removed from a regular employer-employee relationship. It could be argued that, consequently, the applicant as a working prisoner was not in a relevantly similar situation to ordinary employees.

94. However, in the Court’s view, neither the fact that prison work is aimed at reintegration and resocialisation nor the obligatory nature of prison work is decisive in the present case. Furthermore, the Court considers that it is not decisive whether work is performed for the prison authorities, as in the applicant’s case, or for a private employer, although in the latter case there appears to be a stronger resemblance to a regular employment relationship.

95. What is at issue in the present case is not so much the nature and aim of prison work itself but the need to provide for old age. The Court finds that in respect of this the applicant as a working prisoner was in a relevantly similar situation to ordinary employees. It therefore has to examine whether the difference in treatment in respect of affiliation to the old-age pension system under the General Social Security Act was justified. In respect of affiliation to the health and accident insurance scheme under the General Social Security Act, however, the Court would agree that the applicant as a working prisoner was in a different situation from ordinary employees since prisoners’ health and accident care is provided by the State pursuant to the Execution of Sentences Act. Equally, the Court would accept that, as regards the payment of his pension, a prisoner who has already reached pensionable age is in a different situation from a pensioner who is not imprisoned, as a prisoner’s livelihood is provided for by the prison authorities.

(ii) Whether the difference in treatment pursued a legitimate aim

96. Regarding the aim of the difference in treatment, the Government argued that working prisoners often did not have the financial means to pay social security contributions. Counting periods for which no, or at least, no meaningful contributions had been made as insurance periods giving rise to pension entitlements would create an imbalance between working prisoners and persons outside the prison context and would undermine the economic efficiency of the social security institutions, which were already facing a strained financial situation.

97. In addition, a further aim, namely that of preserving the overall consistency within the social security system, appeared to be implied in the Government’s submissions. They argued that periods worked in prison could not be counted as qualifying or substitute periods as, according to the principles of Austrian social security law, such periods could only serve to compensate for periods during which no contributions were made by reason of a limited number of socially accepted activities or situations (for example, school education, childbirth, unemployment, illness, military or alternative military service).

98. The Court accepts that the aims relied on by the Government, namely preserving the economic efficiency and overall consistency of the old-age pension system by excluding from benefits persons who have not made meaningful contributions, are legitimate ones.

(iii) Whether the difference in treatment was proportionate

99. The Court reiterates its well-established case-law that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. It is inconceivable that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 69-70, ECHR 2005‑IX, and Dickson, cited above, § 67). Accordingly, a person retains his or her Convention rights on imprisonment, so that any restriction on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment or from an adequate link between the restriction and the circumstances of the prisoner in question (ibid., § 68).

100. It is against this background that the Court will examine whether there was a reasonable relationship of proportionality between the non-affiliation of working prisoners to the old-age pension system and the legitimate aims set out above. The core of the applicant’s argument was that the Government had failed to provide a justification for the difference in treatment. He asserted that the main reason for prisoners’ inability to pay social security contributions under the General Social Security Act was the State’s own policy choice to withhold the major part of a prisoner’s remuneration as a maintenance contribution.

101. The Court observes that the issue of working prisoners’ affiliation to the old-age pension system is closely linked to issues of penal policy, such as the perception of the general aims of imprisonment, the system of prison work, its remuneration and the priorities in using the proceeds from it, but also to issues of social policy reflected in the social security system as a whole. In short, it raises complex issues and choices of social strategy, which is an area in which States enjoy a wide margin of appreciation, whereas the Court will only intervene when it considers the legislature’s policy choice to be “manifestly without reasonable foundation” (see the case-law cited at paragraph 89 above).

102. Given the complexity of the issue, the Court finds that it cannot look at the question of prisoners’ affiliation to the old-age pension system in isolation but has to see it as one feature in the overall system of prison work and prisoners’ social cover.

103. As has been observed above, in the Austrian system prisoners are under an obligation to work, while the prison authorities are obliged to provide prisoners with appropriate work. The Court notes as a positive feature of that system that more than 70% of the prison population are currently working. Working hours are adapted to the prison context, including certain favourable measures such as counting time spent in therapeutic or social treatment as working time up to five hours per week. Moreover, prisoners receive remuneration for their work, of which 75% is, however, deducted as a maintenance contribution. The Court notes in the first place that collecting such a contribution is not in itself at variance with the Convention (see Puzinas v. Lithuania (dec.), no. 63767/00, 13 December 2005, concerning a complaint under Article 1 of Protocol No. 1 about the deduction of a 25% contribution from a prisoner’s salary). While the percentage in the present case appears rather high, it can nevertheless not be regarded as unreasonable taking into account the general costs of maintaining prisons and the fact that a prisoner’s entire livelihood, including health and accident insurance, is provided for by the State.

104. Turning to prisoners’ social cover, the Court reiterates that when defining the breadth of the margin of appreciation, a relevant factor may be the existence or non-existence of common ground between the laws of the Contracting States (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998‑II).

105. The Court observes that although there is no European consensus on the matter, there is an evolving trend: in contrast to the 1987 European Prison Rules, the 2006 European Prison Rules not only contain the principle of normalisation of prison work but also explicitly recommend in Rule 26.17 that “[a]s far as possible prisoners who work shall be included in national social security systems” (see paragraph 56 above). However, the Court notes that the wording used in Rule 26.17 is cautious (“[a]s far as possible”) and refers to inclusion in national social security systems in general terms. Moreover, while an absolute majority of Council of Europe member States provide prisoners with some kind of social security, only a small majority affiliate prisoners to their old-age pension system, some of them, like Austria, only by giving them the possibility of making voluntary contributions. A minority do not include prisoners in the old-age pension system at all (see paragraph 60 above).

106. It is thus only gradually that societies are moving towards the affiliation of prisoners to their social security systems in general and to their old-age pension systems in particular. Austrian law reflects this trend in that all prisoners are to be provided with health and accident care. In addition, working prisoners have been affiliated to the unemployment insurance scheme since 1 January 1994, following the 1993 amendment to the Unemployment Insurance Act which formed part of a broader reform of the system of execution of sentences. As the Government explained, the reason for that decision was that the legislature considered unemployment insurance to be the most efficient instrument for assisting prisoners’ reintegration upon release as, in addition to payment of unemployment benefits, it granted access to a whole range of training and job-search facilities. At the time of the 1993 reform, affiliation to the old-age pension system had been envisaged, but it has so far not been put in place as a result of the strained financial situation of the social security institutions.

107. Turning to the applicant’s situation, the Court observes that he worked for lengthy periods in prison (see paragraph 10 above). It follows from the domestic authorities’ decisions in the present case that his periods without insurance cover occurred between the 1960s and the 1990s. The Court attaches weight to the fact that 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.

108. The Government argued that very lengthy prison terms were rare and that, consequently, the majority of prisoners had the possibility of accumulating a sufficient number of insurance months for work performed outside prison and were therefore not deprived of an old-age pension. The Court does not consider it necessary to examine this argument in detail. It would rather attach weight to the fact that the applicant, although not entitled to an old-age pension, was not left without social cover. Following his release from prison, he received unemployment benefits 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. According to his own submissions, the applicant currently still receives emergency relief payments complemented by social assistance in the form of a housing allowance. His monthly income currently amounts to approximately EUR 720 and thus almost reaches the level of a minimum pension, which is currently fixed at approximately EUR 780 for a single person.

109. On the basis of the facts of the present case and all the information before it, the Court finds that the system of prison work and the social cover associated with it taken as whole is not “manifestly without reasonable foundation”. In a context of changing standards, a Contracting State cannot be reproached for having given priority to the insurance scheme, namely unemployment insurance, which it considered to be the most relevant for the reintegration of prisoners upon their release.

110. While the respondent State is required to keep the issue raised by the present case under review, the Court finds that by not having affiliated working prisoners to the old-age pension system to date, it has not exceeded the margin of appreciation afforded to it in that matter.

111. It follows that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.

II. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION

112. The applicant alleged that since he was not affiliated to the old-age pension system for work performed as a prisoner, such work could not be regarded as falling under the terms of Article 4 § 3 (a) and therefore violated Article 4 § 2 of the Convention.

The relevant parts of Article 4 read as follows:

“1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention;

...”

A. The parties’ submissions

113. The applicant asserted that the prison work performed by him clearly amounted to “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention. He referred to ILO Convention No. 29, according to which “forced or compulsory labour” meant all “work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. In that connection, he pointed out that prisoners in Austria were obliged to work pursuant to section 44 of the Execution of Sentences Act and that it was a punishable offence under sections 107(1) and 109 of that Act if a prisoner refused to work.

114. While conceding that the obligation to work as a prisoner could be justified by Article 4 § 3 (a), he submitted that, by today’s standards, prison work without affiliation to the old-age pension system could not be regarded as “work required to be done in the ordinary course of detention” within the meaning of that provision. Consequently, the fact that he had to work as a prisoner without being affiliated to the old-age pension system violated Article 4 of the Convention.

115. For their part, the Government argued that prison work fell outside the scope of Article 4 as it was covered by the exception to the prohibition of forced or compulsory labour contained in Article 4 § 3 (a). Consequently, the non-affiliation of working prisoners to the old-age pension system did not raise an issue under Article 4 of the Convention.

B. The Court’s assessment

1. General principles

116. The Court reiterates that Article 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 § 1 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Siliadin v. France, no. 73316/01, § 112, ECHR 2005‑VII, and Rantsev v. Cyprus and Russia, no. 25965/04, § 283, ECHR 2010).

117. Article 4 § 2 of the Convention prohibits “forced or compulsory labour”. In interpreting Article 4, the Court has in previous cases taken into account the relevant ILO Conventions, which are binding on almost all of the Council of Europe member States, including Austria, and especially the 1930 Forced Labour Convention (No. 29) (see Van der Mussele v. Belgium, 23 November 1983, § 32, Series A no. 70, and Siliadin, cited above, § 115).

118. The Court noted in those cases that there was in fact a striking similarity, which was not accidental, between paragraph 3 of Article 4 of the Convention and paragraph 2 of Article 2 of ILO Convention No. 29. Paragraph 1 of the last-mentioned Article provides that “for the purposes” of the latter Convention, the term “forced or compulsory labour” means “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (see Siliadin, cited above, § 116). The Court regarded this definition as a starting-point for the interpretation of Article 4 of the Convention but noted that sight should not be lost of the Convention’s special features or of the fact that it was a living instrument to be read “in the light of the notions currently prevailing in democratic States” (see Van der Mussele, cited above, § 32).

119. Article 4 § 3 (a) of the Convention indicates that the term “forced or compulsory” labour does not include “any work required to be done in the ordinary course of detention”.

120. The Court has noted the specific structure of Article 4. Paragraph 3 is not intended to “limit” the exercise of the right guaranteed by paragraph 2, but to “delimit” the very content of that right, for it forms a whole with paragraph 2 and indicates what the term “forced or compulsory labour” is not to include (“n’est pas consideré comme ‘travail forcé ou obligatoire’”). This being so, paragraph 3 serves as an aid to the interpretation of paragraph 2. The four subparagraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of general interest, social solidarity and what is normal in the ordinary course of affairs (see Van der Mussele, cited above, § 38; see also Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291‑B, and Zarb Adami v. Malta, no. 17209/02, § 44, ECHR 2006‑VIII).

121. The Court’s case-law concerning prison work is scarce. In one of its early judgments the Court had to consider the work a recidivist prisoner was required to perform, his release being conditional on accumulating a certain amount of savings. While accepting that the work at issue was obligatory, the Court found no violation of Article 4 of the Convention on the ground that the requirements of Article 4 § 3 (a) were met. In the Court’s view, the work required “did not go beyond what is ‘ordinary’ in this context since it was calculated to assist him in reintegrating himself into society and had as its legal basis provisions which find an equivalent in certain other member States of the Council of Europe” (see Van Droogenbroeck v. Belgium, 24 June 1982, § 59, Series A no. 50, with reference to De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 89‑90, Series A no. 12).

122. In respect of prisoners’ remuneration and social cover, the Court refers to the decision by the European Commission of Human Rights in Twenty-One Detained Persons v. Germany (nos. 3134/67, 3172/67 and 3188-3206/67, Commission decision of 6 April 1968, Collection 27, pp. 97-116), in which the applicants, relying on Article 4, complained that they were refused adequate remuneration for the work which they had to perform during their detention and that no contributions under the social security system were made for them by the prison authorities in respect of the work done. The Commission declared their complaint inadmissible as being manifestly ill‑founded. It noted that Article 4 did not contain any provision concerning the remuneration of prisoners for their work. Moreover, it referred to its consistent case-law, which had rejected as being inadmissible any applications by prisoners claiming higher payment for their work or claiming the right to be covered by social security systems.

123. The Court had to examine a similar complaint from a somewhat different angle in Puzinas (cited above). The applicant complained under Articles 4 and 14 of the Convention and Article 1 of Protocol No. 1 that the domestic social security legislation was inadequate in that it did not permit prisoners to claim a pension or any other social benefits for prison work. The Court examined the complaint in the first place under Article 1 of Protocol No. 1, noting that it was undisputed that the applicant was not entitled to any pension or social benefits under the relevant domestic legislation. Finding that the applicant therefore had no possessions within the meaning of Article 1 of Protocol No. 1 regarding his future entitlement to or the amount of a pension, the Court rejected the complaint under this provision, as well as under the other provisions relied on, as being incompatible ratione materiae with the provisions of the Convention.

2. Application to the present case

124. The Court has to examine whether the applicant in the present case had to perform “forced or compulsory labour” contrary to Article 4 of the Convention. The Court notes that the applicant was under an obligation to work in accordance with section 44(1) of the Execution of Sentences Act. Refusal to perform the work assigned to him constituted an offence under section 107 of that Act, punishable under section 109 by penalties ranging from a reprimand to solitary confinement.

125. Taking the definition of “forced or compulsory labour” contained in Article 2 § 1 of ILO Convention No. 29 as a starting-point for the interpretation of Article 4 § 2 of the Convention (see Van der Mussele, cited above, §§ 32-34), the Court has no doubt that the applicant was performing work for which he had not offered himself voluntarily under the menace of a penalty.

126. While this does not appear to be in dispute between the parties, they differ in their view as to whether his work was covered by the terms of Article 4 § 3 (a) of the Convention, which exempts “work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention” from the term “forced or compulsory labour”. The Government answered the question in the affirmative, concluding that the work performed by the applicant as a prisoner did not fall within the scope of Article 4. The applicant for his part asserted that prison work without affiliation to the old-age pension system was not covered by the provision in question. Therefore, it constituted “forced or compulsory labour” in violation of Article 4 § 2.

127. The Court has not yet had an opportunity to examine the question whether Article 4 requires Contracting States to include working prisoners in the social security system. It notes that the above-mentioned decision of the Commission in Twenty-One Detained Persons (cited above), which answered the question in the negative, dates from 1968. The Court will therefore have to assess whether the position adopted in that decision is still valid in respect of the work performed by the applicant as a prisoner without being affiliated to the old-age pension system.

128. The wording of the Convention does not give any indication as regards the issue of working prisoners’ affiliation to the national social security system. However, in establishing what is to be considered “work required to be done in the ordinary course of detention”, the Court will have regard to the standards prevailing in member States (see Van Droogenbroeck, cited above, § 59).

129. The applicant relies in essence on the Court’s doctrine that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, for instance, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002‑VI; and Van der Mussele, cited above, § 32). He appears to be arguing that European standards have changed to such an extent that prison work without affiliation to the old-age pension system can no longer be regarded as “work required to be done in the ordinary course of detention”.

130. The Court notes that the applicant worked for lengthy periods in prison, starting in the 1960s. At that time the Commission, in its decision in Twenty-One Detained Persons (cited above), held that Article 4 of the Convention did not require working prisoners to be affiliated to the social security system. The 1987 European Prison Rules remained silent on the issue of working prisoners’ affiliation to the social security system. The Court acknowledges that, subsequently, significant developments have taken place in the field of penal policy. These developments are reflected in the 2006 European Prison Rules, which contain the principle of normalisation of prison work as one of the basic principles. More specifically in the present context, Rule 26.17 of the 2006 Rules provides that “[a]s far as possible, prisoners who work shall be included in national social security systems”.

131. However, having regard to the current practice of the member States, the Court does not find a basis for the interpretation of Article 4 advocated by the applicant. According to the information available to the Court, while an absolute majority of Contracting States affiliate prisoners in some way to the national social security system or provide them with some specific insurance scheme, only a small majority affiliate working prisoners to the old-age pension system. Austrian law reflects the development of European law in that all prisoners are provided with health and accident care and working prisoners are affiliated to the unemployment insurance scheme but not to the old-age pension system.

132. In sum, it appears that there is not sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system. While Rule 26.17 of the 2006 European Prison Rules reflects an evolving trend, it cannot be translated into an obligation under Article 4 of the Convention. Consequently, the obligatory work performed by the applicant as a prisoner without being affiliated to the old-age pension system has to be regarded as “work required to be done in the ordinary course of detention” within the meaning of Article 4 § 3 (a).

133. The Court concludes that the work performed by the applicant was covered by the terms of Article 4 § 3 (a) of the Convention, and did not therefore constitute “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention.

134. Consequently, there has been no violation of Article 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4

135. The Court notes that the applicant relied mainly on Article 4 alone, but also referred to Article 14, however without submitting any separate arguments under Article 14 taken in conjunction with Article 4.

136. The Court finds that its examination under Article 4 alone covers all aspects of the issue raised by the applicant’s complaint. The Court therefore considers that there is no need to examine the applicant’s complaint under Article 14 of the Convention taken in conjunction with Article 4.

FOR THESE REASONS, THE COURT

1. Holds by ten votes to seven that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1;

2. Holds by sixteen votes to one that there has been no violation of Article 4 of the Convention;

3. Holds unanimously that there is no need to examine the complaint under Article 14 of the Convention taken in conjunction with Article 4.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 7 July 2011.

Vincent Berger      Jean-Paul Costa
    Jurisconsult      President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) concurring opinion of Judge De Gaetano;

(b) joint partly dissenting opinion of Judges Tulkens, Kovler, Gyulumyan, Spielmann, Popović, Malinverni and Pardalos;

(c) partly dissenting opinion of Judge Tulkens.

J.-P.C.
V.B.

CONCURRING OPINION OF JUDGE De Gaetano

1. I have voted with the majority under all three heads of the operative part of the judgment. Nevertheless, I cannot share fully the reasoning embraced by the majority in connection with the first two heads.

2. The majority have found that there was no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 because the difference in treatment pursued a legitimate aim (see paragraphs 96-98 of the judgment) and was proportionate (see paragraphs 99-110). In my view, the Court need not have gone so far. Contrary to what is suggested in paragraph 95, the General Social Security Act is not intended “to provide for old age” generally, but only to make provision for, inter alia, an old-age pension for persons who are gainfully employed. By no stretch of the imagination can the applicant be considered to have been, while in prison, “gainfully employed”, the notion of gainful employment implying a measure of contribution to the national economy. In my view, therefore, the applicant, as a prisoner working in the prison kitchen or prison bakery, was simply not in a relevantly similar situation to ordinary employees (a point which is only hesitantly referred to in paragraph 93 of the judgment and then discarded). The position might have been different if he were performing work (whether within the prison confines or without) for a private person or company; or if he were engaged in producing things which the prison authorities then sell on the open market in direct competition with other producers; but that is not the case here.

3. As for the finding of no violation of Article 4, the majority decision seems to be based on the fact that “there is not sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system” (see paragraphs 132 and 131 passim). Again, I fail to follow the reasoning. Work which is excepted under Article 4 § 3 (because it is required to be done “in the ordinary course of detention”) does not cease to be so excepted because it is paid or unpaid, or because the prisoner is or is not affiliated to a pension scheme. Nor do the European Prison Rules (of 1987 and 2006) come into the picture in the instant case. What one has to look at is the nature of the work performed by the applicant. In this case, the applicant was not made to stand by the side of a public road to break stones with a sledgehammer – he worked in the prison kitchen and prison bakery, which must surely rank as an “ordinary” contribution to the work that must necessarily be carried out in any community by its members, be that community domestic, monastic or penal. In the light of the above, I cannot share the reasoning in paragraphs 129 to 132 of the judgment.

JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS, KOVLER, GYULUMYAN, SPIELMANN, POPOVIĆ, MALINVERNI AND PARDALOS

(Translation)

We do not share the position of the majority that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 in the present case. Instead, we believe that the applicant, who spent twenty-eight years in prison and worked there for lengthy periods, was discriminated against in that he was not affiliated to the old-age pension system on account of his status as a prisoner.

1. First of all, we would emphasise that we fully agree with the majority that the applicant, as a working prisoner, was in a relevantly similar situation to ordinary employees as regards the need for old-age insurance cover (see paragraph 95 of the judgment). Here, the judgment explicitly, and rightly, rejects the Government’s contention that working prisoners were not in a similar situation to other employees, notably because of the difference in the nature and aims of prison work, which was mandatory and pursued the aims of social reintegration and rehabilitation.

2. Where we depart from the majority is in the assessment of whether the difference in treatment to which the applicant was subjected in respect of affiliation to the old-age pension system under the General Social Security Act was justified in terms of the requirements of the Convention. In our view, it was not.

3. With regard, firstly, to the legitimate aim pursued by the difference in treatment, the judgment refers to “preserving the economic efficiency and overall consistency of the old-age pension system by excluding from benefits persons who have not made meaningful contributions” (see paragraph 98 of the judgment). Although it is of course reasonable to take economic realities into account, it must nevertheless be acknowledged that there has been a gradual trend in the Court’s recent case-law towards attaching considerable importance to them, sometimes to the detriment of fundamental rights (see N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008; Burden v. the United Kingdom [GC], no. 13378/05, ECHR 2008; and Carson and Others v. the United Kingdom [GC], no. 42184/05, ECHR 2010). Furthermore, strictly speaking, the “economic well-being of the country” found in Article 8 of the Convention does not appear as such in Article 1 of Protocol No. 1, which refers more broadly to the public interest.

4. Next, with regard to the question of proportionality, the judgment begins with an emphatic reminder of the Court’s well-established case-law to the effect that “prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. It is inconceivable that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction” (see paragraph 99 of the judgment). Nevertheless, in applying this approach to the present case, the majority head off in a different direction.

5. The judgment relies to a large extent on the margin of appreciation which the State must be afforded, one of the relevant factors in which may be the existence or non-existence of common ground between the legal systems of the Contracting States (see paragraph 104 of the judgment). We would observe that there is nowadays an evolving trend in the Council of Europe member States towards the affiliation of working prisoners to national social security systems. The 2006 European Prison Rules reflect the position of all the Council of Europe member States in terms of policy[1]. On the basis of Rules 64 and 65 of the 1987 European Prison Rules, they lay down the principle of normalisation of detention conditions as the basis of policy on execution of sentences[2]. They explicitly recommend that “[a]s far as possible, prisoners who work [should] be included in national social security systems” (Rule 26.17). This trend is gradually reducing the margin of appreciation which States may enjoy in this area. While they still retain a choice in respect of the policies to be implemented and the timing of any legislative changes (see Petrovic v. Austria, 27 March 1998, §§ 36-42, Reports of Judgments and Decisions 1998‑II, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 63-65, ECHR 2006‑VI), they cannot disregard such a trend altogether.

6. We are struck by the lack of flexibility in the system applied in the applicant’s case. Section 4(2) of the General Social Security Act, as interpreted by the domestic courts, provides for the automatic exclusion of working prisoners from the compulsory old-age pension system. The applicant thus worked for twenty-eight years as a prisoner without ever having been affiliated to the system. Besides the consideration that working prisoners are in a different situation from ordinary employees in that they do not perform work on the basis of an employment contract but by virtue of a statutory obligation, the exclusion is mainly based on the premise that prisoners do not have the necessary means to pay contributions to the old-age pension system. However, this situation is a result of the State’s deliberate policy choice to withhold 75% of a working prisoner’s remuneration as a maintenance contribution, a percentage which is particularly high[3]. Prisoners are thus in a sense “condemned” to be unable to pay sufficient contributions.

7. While deducting a maintenance contribution from a prisoner’s remuneration is not in itself at variance with the Convention (see Puzinas v. Lithuania (dec.), no. 63767/00, 13 December 2005), the high percentage of this contribution in the Austrian system leaves virtually no room for contributions to the social security system, apart from a small percentage for the payment of contributions to the unemployment insurance scheme. In our view, there is a lack of balance between the possible public interest in ensuring that prisoners contribute towards the costs incurred by the community as a result of their imprisonment and the individual prisoner’s interest in providing for old age. Nowadays, because of the long-term sentences being imposed in many countries, the presence of an older prison population is a new sociological reality which will necessarily raise the question of old-age pensions for such prisoners at the time of their release. The applicant’s case is a good example. He has spent twenty-eight years of his life in prison and was released at the age of sixty-six.

8. Admittedly, the applicant was not left without any social cover. Since the 1993 amendment to the Unemployment Insurance Act, working prisoners have been affiliated to the unemployment insurance scheme, which the legislature considered at that time to be the most effective instrument for encouraging prisoners’ reintegration after release. However, as the Government acknowledged, the Austrian legislature itself regarded this amendment as only a first step towards full integration of working prisoners into the social security system (see paragraph 78 of the judgment). Yet despite that intention, the issue of working prisoners’ affiliation to the old-age pension system has not been discussed subsequently.

9. From a judicial perspective, the applicant brought his case before the courts in 2001 and the Supreme Court gave judgment in 2002. In finding that the non-affiliation of working prisoners to the old-age pension system was not discriminatory, the domestic courts limited themselves to referring to the Supreme Court’s leading case on the issue, a judgment delivered in 1990 – more than twenty years ago now. They did not consider it necessary to re-examine whether the non-affiliation of working prisoners was still proportionate to any legitimate aims pursued, nor did they make an assessment of the applicant’s particular circumstances.

10. Regarding the applicant’s current situation, he continues to receive emergency relief payments (to which he is entitled on account of having been covered by the Unemployment Insurance Act as a working prisoner), supplemented by social assistance for persons who are otherwise unable to provide for their basic needs. However, in our view, neither the emergency relief payments nor the social assistance can be compared to an old-age pension granted on the basis of the number of years worked and the contributions paid. The former constitute assistance, whereas the latter is a right. The difference is significant in terms of respect for human dignity. Social security forms an integral part of human dignity. In addition, it is now acknowledged in modern penology that social rehabilitation implies the development of personal responsibility. Lastly, as regards access to social services, the European Committee of Social Rights has highlighted former prisoners as a vulnerable group.

11. In these circumstances, we consider that the non-affiliation of working prisoners to the old-age pension system creates a distinction between prisoners and ordinary employees, which risks producing – and in the applicant’s case actually produces – a long-term effect going well beyond the legitimate requirements of serving a particular prison term. Some writers have had no hesitation in referring to this as double punishment[4]. Such a situation sits ill with the idea that prisoners should not suffer any restriction of their rights beyond the necessary and inevitable consequences of imprisonment. Moreover, it does not serve the aim of rehabilitation, on which, by the Government’s own assertion, the system of prison work is based.

12. The Grand Chamber’s judgment does, however, leave an opening for the future. The Grand Chamber takes note of the context of changing standards and finds that while, as matters currently stand, the respondent State has not exceeded the margin of appreciation afforded to it in this area by not affiliating working prisoners to the old-age pension system, it is called upon to keep the situation under review (see paragraph 110 of the judgment). Prisoners, it must be emphasised, have been recognised by the Court itself as persons in a vulnerable situation (see, for example, Algür v. Turkey, no. 32574/96, § 44, 22 October 2002; Mikadze v. Russia, no. 52697/99, § 109, 7 June 2007; Renolde v. France, no. 5608/05, § 93, ECHR 2008; and Aliev v. Georgia, no. 522/04, § 97, 13 January 2009). Today, the right to an old-age pension forms part of the social pact between citizens and the State.

PARTLY DISSENTING OPINION OF JUDGE TULKENS

(Translation)

1. I consider that in this case there were sound reasons for finding a violation of Article 4 of the Convention, which prohibits forced labour. This position is all the more compelling as the Court has found no violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention.

2. Admittedly, Article 4 § 3 (a) specifies that “forced or compulsory labour” does not include any work required to be done in the ordinary course of detention (“tout travail requis normalement d’une personne soumise à la détention”). However, this provision, incorporated in the Convention in 1950, must be interpreted in the light of the present-day situation. More specifically, the concepts used in the Convention are to be understood in the sense given to them by democratic societies today.

3. It has long been the Court’s position that “[g]iven that [the Convention] is a law-making treaty, it is ... necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties”[5]. Such an interpretation is guided by the Preamble to the Convention, which refers to the maintenance and further realisation of rights and freedoms. “Maintenance” requires the Court to ensure in particular that the rights and freedoms set out in the Convention continue to be effective in changing circumstances. “Further realisation” allows for a degree of innovation and creativity, which may extend the scope of the Convention guarantees. Moreover, in the Golder judgment, the Court provided the following clarification regarding the teleological method: “This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6 § 1 read in its context and having regard to the object and purpose of the Convention, a law-making treaty.”[6] The same reasoning can be followed in relation to Article 4 § 3 (a).

4. This approach has had natural consequences. The Court subsequently developed the idea/principle of effective protection of the rights enshrined in the Convention[7]. Since then, the effectiveness theory has become the basis for the protection of the Convention rights and freedoms. These rights must be given “their full scope” since the purpose of the Convention is to guarantee rights that are not theoretical or illusory but practical and effective.

5. In relation to Article 4 of the Convention, the judgment rightly notes that the Court’s case-law concerning prison work is scarce. Indeed, in the sphere of prisoners’ remuneration and social cover, the only relevant decision is that by the European Commission of Human Rights in the case of Twenty-One Detained Persons v. Germany (nos. 3134/67, 3172/67 and 3188-3206/67, Commission decision of 6 April 1968, Collection 27, pp. 97‑116), in which the application was declared manifestly ill-founded.

6. More than forty years have passed since the above-mentioned inadmissibility decision and prison law – which at the time was virtually non-existent – has developed considerably during this period. Traditionally regarded as an area outside the law, prisons have gradually opened up to fundamental rights, to the benefit not only of prisoners but also of the prison authorities and their staff. Thus, regarding the same issue of prisoners’ remuneration which formed the subject of the Commission’s 1968 inadmissibility decision referred to in the previous paragraph, it is interesting to note that thirty years later, in a judgment of 1 July 1998, the German Federal Constitutional Court held, on the contrary, that since the State had a constitutional duty to promote prisoners’ social rehabilitation and had chosen compulsory prison work as one of the means of achieving that aim, it had to ensure appropriate remuneration for such work, which could not yield the expected results unless it was properly rewarded[8]. Although the Constitutional Court did not specify the amount that would constitute an appropriate reward, it held that it was unconstitutional to pay prisoners low wages that bore no relation to the value of the work performed or to the minimum wage in the outside world. The guiding principle is that of human dignity[9]. Similarly, Rule 26.10 of the 2006 European Prison Rules emphasises the need for equitable remuneration for prisoners.

7. In Austria, as we have seen, prisoners are obliged to work pursuant to section 44 of the Execution of Sentences Act; furthermore, refusal to work constitutes an offence under sections 107(1) and 109 of the same Act, carrying penalties ranging from a reprimand to solitary confinement. This situation thus clearly entails – as was not disputed – work under the menace of a penalty within the meaning of the International Labour Organization Forced Labour Convention (No. 29), and hence forced or compulsory labour.

8. In such a context, can it really still be maintained in 2011, in the light of current standards in the field of social security, that prison work without affiliation to the old-age pension system constitutes work that a person in detention may normally be required to do? I do not think so. This, in my view, is the fundamental point. Nowadays, work without adequate social cover can no longer be regarded as normal work. It follows that the exception provided for in Article 4 § 3 (a) of the Convention is not applicable in the present case. Even a prisoner cannot be forced to do work that is abnormal. In the examination of the case under Article 14 taken in conjunction with Article 1 of Protocol No. 1, moreover, the judgment notes explicitly that “the applicant as a working prisoner was in a relevantly similar situation to ordinary employees” (see paragraph 95 of the judgment).

9. If we are to give any meaning to the famous phrase from the 1984 Campbell and Fell judgment that “justice cannot stop at the prison gate”[10], it is important to take account of developments in the member States, as reflected, for example, in the 2006 European Prison Rules, which refer to normalisation of prison work as one of the basic principles in this sphere and one which has guided reforms in certain member States[11].

10. In finding no violation of Article 4 of the Convention, the judgment relies to a decisive extent on the lack of a sufficient consensus among member States on the issue of working prisoners’ affiliation to the old-age pension system (see paragraph 132 of the judgment). This argument, to my mind, raises two difficulties. The first is of a factual nature. Nowadays, with the development of long-term prison sentences, the profile of prisoners has changed and the reality is that prisons house increasing numbers of older inmates. Whereas for younger prisoners, the requirements of social rehabilitation encompass health and accident cover and affiliation to the unemployment insurance scheme, for older prisoners they also include the guarantee of an old-age pension. The second difficulty is of a legal nature. What role is there in the present case for a European consensus, the main function of which is to determine the extent of the margin of appreciation? The flexibility inherent in the margin of appreciation is admittedly an essential factor, but, as the Court has frequently repeated, it must go hand in hand with European supervision. Such supervision was lacking in the present case.

[1]. Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe on the European Prison Rules, adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies.

[2]. The concept of normalisation is defined as bringing detention conditions closer to parity with the standards of free society, in both social and legal terms (see W. Lesting, Normalisierung im Strafvollzug. Potential und Grenzen des §3 Absatz 1 StVollzG, Pfaffenweiler, Centaurus, 1988, and E. Shea, “Les Paradoxes de la Normalisation du Travail Pénitentiaire en France et en Allemagne”, in Déviance et Société, vol. 29, no. 3, 2005, pp. 349 et seq.).

[3]. See A. Pilgram, “Austria”, in D. van Zyl Smit and S. Snacken (eds.), Prison Labour: Salvation or Slavery? International Perspectives, Onati International Series in Law and Society, Aldershot, Ashgate, 1999, p. 21.

[4]. See “Les limitations au droit à la sécurité sociale des détenus: une double peine ?”, V. van der Plancke and G. Van Limberghen (eds.), in Les dossiers de la revue de droit pénal et de criminologie, no. 16, Brussels, La Charte, 2010.

[5]. See Wemhoff v. Germany, 27 June 1968, p. 23, § 8, Series A no. 7.

[6]. See Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18.

[7]. See Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, p. 32, § 5, Series A no. 6.

[8]. BverfG – 2 BvR 441/90, 1 July 1998.

[9]. D. van Zyl Smit and S. Snacken, Principles of European Prison Law and Policy. Penology and Human Rights, Oxford University Press, 2009, p. 192.

[10]. See Campbell and Fell v. the United Kingdom, 28 June 1984, § 69, Series A no. 80.

[11]. Thus, for example, in Belgium, the Law of 12 January 2005 establishing the principles governing the prison service and the legal status of prisoners is part of the reform aimed at normalising prison work by making it as similar as possible to employment in the community and requiring its inclusion in the social security system.

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