Social Security and the European Convention on Human Rights: How an Odd Couple Has Become Presentable

Date01 September 2007
DOI10.1177/138826270700900302
Published date01 September 2007
Subject MatterArticle
/tmp/tmp-17hNzeYOEfCi98/input soCIal seCURITY anD THe eURoPean
ConVenTIon on HUMan RIGHTs: HoW an
oDD CoUPle Has beCoMe PResenTable
Klaus Kapuy*
Abstract
For more than twenty years now, the European Convention on Human Rights has
been used to solve disputes in social security. This is peculiar since the Convention
itself and its Protocols primarily comprise civil and political rights and do not include
a right to social security. This article analyses the supervisory bodies’ case law to
establish how national disputes over contributions or cash-benefits under statutory
social insurance and social assistance scheme have attracted the protection of the
Convention. It also provides an overview of the types of social security cases which
today fall within the ambit of particular rights guaranteed by the Convention. It
concludes that the right to a fair trial (Article 6(1)) and the protection of property
(Article 1 of the First Protocol to the Convention) are, as a general rule, applicable in
the field of social security. By contrast, the protection of family life and the protection
of private life (Article 8) have, in social security matters only, only been accepted as
applicable in the context of particular branches of social security or in relation to
particular groups of beneficiaries.

Keywords: European Convention on Human Rights; equal treatment; fair trial;
family life; human rights; private life; property; social assistance; social insurance;
social security
1.
INTRODUCTION
The Council of Europe’s Convention on the Protection of Human Rights and
Fundamental Freedoms (hereafter referred to as ‘the Convention’) and the Protocols
*
Klaus Kapuy is a PhD candidate at the Institute of Social Law of the K.U.Leuven (Catholic University
of Leuven). Address: 43 Tiensestraat, BE 3000 Leuven, Belgium. Email: klaus.kapuy@law.kuleuven.
be.
European Journal of Social Security, Volume 9 (2007), No. 3
221

Klaus Kapuy
thereto do not include a right to social security. Such a right is stipulated, by contrast,
in the European Social Charter – one of the Council of Europe’s most important
agreements for fulfilling its economic and social mandate and which complements the
Convention1 – as well as in other international human rights treaties. However, due to
the Convention’s comprehensive impact on States Parties and its strong enforcement
mechanisms, individuals have, from the very beginning, brought cases before the
European Commission of Human Rights (hereafter referred to as ‘the Commission’)
and the European Court of Human Rights (hereafter referred to as ‘the Court’).2
The reaction of the Convention’s judicial supervision organs in Strasbourg to such
complaints is the focus of this article. To be more precise, it examines the Convention’s
role in the field of statutory social insurance and social assistance and provides an
overview of the Court’s and Commission’s relevant case law, showing how civil and
economic rights have been used to solve social security disputes. The intention of the
article is to open up the field of human rights to experts in social security and to serve
as a point of reference for further research and practice.
2.
SOCIAL SECURITY IN THE EUROPEAN COURT OF
HUMAN RIGHT’S CASE LAW
Complainants have invoked miscellaneous rights enumerated in the Convention when
they have brought forward complaints in social security matters. These have included,
most notably, Article 23 (the right to life), Article 3 (the prohibition of torture),
Article 4 (the prohibition of slavery and forced labour), Article 6 (the right to a fair
trial), Article 8 (the right to respect for private and family life), Article 9 (the freedom
of thought, conscience and religion), Article 1 of the First Protocol to the Convention,
hereafter referred to as ‘Article 1 1P’, (the protection of property), and Article 4 of the
Seventh Protocol to the Convention (the right not to be tried or punished in criminal
proceedings for an offence for which one has already been acquitted or convicted, i.e.
the ne bis in idem principle). All these Articles have been either invoked alone or in
conjunction with Article 14 (the prohibition of discrimination), as Article 14 does not
guarantee a free-standing right in the Convention, but only non-discrimination in
relation to one of the rights secured in Section 1 of the Convention.
In conjunction with certain provisions of the Convention, the Commission and
the Court have, over the years, accepted social security cases as admissible. These
1
This becomes apparent through the preamble of the European Social Charter.
2
See for a comprehensive collection of these cases Klaus Kapuy, Danny Pieters and Bernhard
Zaglmayer, (2007), Social Security Cases in Europe: The European Court of Human Rights, Antwerp,
Intersentia.
3
All Articles without reference relate to the European Convention on Human Rights as amended by
Protocol No. 11.
222
Intersentia

Social Security and the European Convention on Human Rights
provisions, ordered according to practical relevance, are Article 6(1), Article 1 1P and
Article 8, all taken alone or in conjunction with Article 14. Social security claims
based on other provisions have been, basically, declared inadmissible, i.e. they have
been rejected due to the fact that they were not based on rights which are protected
by the Convention (ratione materiae) or were manifestly ill-founded, meaning that
the applicant failed to provide any evidence or that the facts complained about were
clearly outside the scope of the Convention.
2.1. RIGHT TO A FAIR TRIAL
Article 6 reads:
1. In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of the trial in the
interests of morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice.
[…]
In the 1960s and 1970s, the Commission was confronted with different aspects of
Article 6(1) in social security proceedings. The question that had to be answered was
whether these kinds of proceedings fall within the scope of Article 6(1) in so far as
they involve the determination of civil rights and obligations.4 In the early cases, the
Commission found that the claims did not involve a right of a private character and
thus fell outside its competence ratione materiae.5
This restrictive approach was taken until the mid 1980s, when the Strasbourg
judges were confronted with the cases Feldbrugge and Deumeland.6 In Feldbrugge
v. the Netherlands,
the applicant alleged the denial of a fair hearing in the appellate
proceedings against the decision to withdraw her entitlement to a sickness allowance.
And in Deumeland v. Germany the applicant complained about the absence of
a fair hearing within a reasonable period of time in the proceedings for a widow’s
supplementary pension under an industrial-accident insurance scheme. Both
4
Civil rights and obligations have been interpreted independently from domestic laws by examining
the nature of the claim and the purpose of the complaint.
5
See, for instance, decision of 21 July 1970, X. v. Austria, Appl. No. 3959/69, decision of of 12 July
1978, X. v. Austria, Appl. No. 8149/78.
6
All cases referred to in this article are listed at the end.
European Journal of Social Security, Volume 9 (2007), No. 3
223

Klaus Kapuy
Commission and Court declared the applications admissible.7 The Court established
specific criteria in order to clarify when social security entitlements can be regarded
as civil rights. In particular, it weighed the public and private law features of the social
insurance schemes at issue. The Court concluded that, although both features were
present in the cases before it, the latter was predominant.8 The Court then determined,
on the basis of its case-law, whether the proceedings satisfied the conditions laid down
in Article 6(1) and constituted a violation of the provision.9 Thus, Feldbrugge and
Deumeland were not only the first cases in social security matters to be declared
admissible under Article 6(1), but were also the first relating to social security where a
violation of this provision was found.10
These landmark judgments led to a broader interpretation of the scope of
Article 6 in social security proceedings. It is worth mentioning the Strasbourg ruling
in Lombardo v. Italy, where for the first time, a civil servant’s complaint in a social
security dispute was declared admissible under Article 6(1).11
In the early 1990s, when the Strasbourg judges were to decide on the applicability
of Article 6 in proceedings dealing with a social welfare benefit, they adapted their
previous reasoning. In Salesi v. Italy, the applicant had sought payment of a monthly
disability allowance, which the social welfare department had refused to grant her. It
took more than six years until the final judgment of the Court of Cassation was filed.12
Both Commission and Court held that Article 6(1) was applicable in the case before
them. The Court observed that, based on the Feldbrugge and Deumeland judgments,
the...

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