The right to minimum subsistence and property protection under the ECHR: Never the twain shall meet?
| Date | 01 December 2019 |
| Published date | 01 December 2019 |
| DOI | 10.1177/1388262719892466 |
| Author | Ingrid Leijten |
| Subject Matter | Articles |
Article
The right to minimum
subsistence and property
protection under the ECHR:
Never the twain shall meet?
Ingrid Leijten
Leiden University, the Netherlands
Abstract
This article discusses recent developments concerning the right to minimum subsistence as a
matter of property protection under the European Convention on Human Rights. It starts with
two recent cases: B´
elan´
e Nagy v. Hungary and Bacz´
ur v. Hungary. In its judgments in these cases, the
European Court of Human Rights emphasised that, in determining whether an interference with a
benefit is proportional, an important consideration is whether the individual still receives a sub-
sistence minimum. It moreover held that a right to a (minimum) benefit can exist even if the
conditions for receiving this benefit have not been met. Read together, B´
elan´
e Nagy and Bacz´
ur flag
an increasingly social interpretation of the property right enshrined in Article 1of the First Pro-
tocol to the ECHR involving positive obligations and a focus on the neediest. On a closer look,
however, the Court’s interpretation is not a very straightforward one. Judgments rendered after
B´
elan´
e Nagy and Bacz´
ur show that, although there is a clear trend to protect claimants’ means of
subsistence, the relationship between property and a right to such means remains opaque, and the
potential of a property right to guarantee the latter, limited. In this article, I present the recent case
law against the background of the increasing significance of Article 1P1in the field of social security
as well as the obstacles to protecting a subsistence minimum. I will delineate the questions that
promise to haunt the Court in the cases to come and explore some of the answers it could
formulate in this regard. It is argued that a positive right to a subsistence minimum is, for various
reasons, unlikely to be developed as a matter of property protection under the Convention.
Keywords
Right to minimum subsistence, right to protection of property, European Court of Human Rights,
European Convention on Human Rights
Corresponding author:
Ingrid Leijten, Assistant Professor, Department of Constitutional and Administrative Law, Leiden University, Rapenburg 70,
2311 EZ Leiden, the Netherlands.
E-mail: a.e.m.leijten@law.leidenuniv.nl
European Journal of Social Security
2019, Vol. 21(4) 307–325
ªThe Author(s) 2019
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DOI: 10.1177/1388262719892466
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Introduction
Social security cases are nothing new to the European Court of Human Rights (ECtHR; Court).
Although the first social security cases were brought to the Court in the 1970s,
1
its case law on this
topic has taken off, particularly over the past twenty years or so. Complaints concerning pensions
and other benefits and allowances are generally reviewed on the basis of Article 1 of Protocol No. 1
to the European Convention on Human Rights (ECHR; Convention).
2
This provision guarantees
the right to protection of property (‘to the peaceful enjoyment of his possessions’).
3
Especially for
a supranational court, social security is a sensitive topic to deal with per se.
4
Doing so by means of
property rights protection in some cases arguably complicates the matter. First, there is the issue of
how far a court can go in deciding upon, and interfering with, choices in regard to social security
made by other (democratically elected) authorities. Secondly, in the case of a supranational court
interpreting rights that are ‘civil and political’ rather than ‘socio-economic’ in character, even
more caution is required. And thirdly, in the context of property rights, the question is also raised as
to what the link is between property rights and social security claims. In other words, what is the
role of a fundamental right to the protection of property in relation to national social security
systems involving highly politicised decision-making about who receives and pays what? Does
protection of ‘possessions’ imply that only existing possessions are protected, or should this human
right today include a positive right to obtain at least a subsistence minimum
5
from the state?
This question might seem far-fetched, for how can we speak of ‘property’ when what is
concerned is the right to receive something (without doing anything in return)? Recent develop-
ments in the case law of the ECtHR, however, show that this is exactly the point which this Court’s
interpretation of the right to protection of property has reached.
6
In 2005, the Court concluded that
‘in the modern democratic state’, regardless of whether contributions are paid, many domestic
legal systems provide for benefits to be paid ‘as of right’, the importance of which should be
reflected by holding Article 1 P1 applicable.
7
After that, the Court’s social security case law
developed rapidly.
8
A generous interpretation of ‘possessions’ has not generally resulted in appli-
cants before the ECtHR obtaining a judgment in their favour. Still, the review of social security
cases has led the Court to reflect on numerous national social measures taken in times of austerity
1. See, for example, EComHR 20 July 1971 (dec.), appl. no. 4130/69, X. v. the Netherlands.
2. Sometimes applicants rely on Article 14 in conjunction with Article 1 P1 of the Convention, see also Cousins (2009);
Leijten (2013). Also, Article 6 ECHR, the right to a fair trial, is invoked in social security issues. Complaints about a lack
of benefits are, moreover, brought under Article 3 or 8 ECHR. A recent example is ECHR 11 December 2018, appl. no.
65550/13, Belli and Arquier-Martinez v. Switzerland. See, on the alternative routes for protecting a social minimum
under the ECHR, further the final section of this article.
3. Article 1 P1 reads as follows: ‘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’.
4. Cf. Bossuyt (2007).
5. With ‘subsistence minimum’, I refer to what is also called a social minimum or minimum social protection, meaning the
State provides a minimum level of (income) support. This concept here does not refer to a particular set or level of
protection.
6. Cf. Tsetoura (2013: 64).
7. ECtHR (GC) 6 June 2005 (dec.), appl. nos. 65731/01 65900/01, Stec a. O. v. the UK.
8. For an overview of this development, see Leijten (2013).
308 European Journal of Social Security 21(4)
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