Cour européenne des droits de l’Homme
7 juillet 2011
Facts
The applicant had spent 28 years in prison and had worked for lengthy periods during his time in prison. According to Austrian law, prisoners performing obligatory work were not affiliated to the social insurance scheme. Therefore, he was not affiliated to the old-age pension system but to the unemployment insurance scheme instead. His application for an early retirement pension was dismissed on the grounds that he had failed to accumulate the minimum of insurance months required for an early retirement pension.
Complaint
The applicant argued that the months he had spent working in prison should be counted as insurance months in calculation of his pension rights. He complained that his exemption from affiliation to the old-age pension system was discriminatory, in violation to Article 14 of the Convention taken in conjunction with Article 1 of the Protocol No. 1. He also alleged that prison work without affiliation to the old-age pension system could no longer be regarded as work required to be done in the ordinary course of detention and invoked Article 4 of the Convention (prohibition of forced labour)
Court’s ruling
The Court agreed that there was a difference in treatment between two similar situations. Working prisoners and ordinary employees were in the same situation when regarding their need to provide for old age. Therefore, the difference in treatment in respect of affiliation to the old-age pension system had to be justified.
The Court found that this difference in treatment was justified by a legitimate aim which was to preserve the economic efficiency of the social security institutions. Regarding proportionality, the Court found that the issue of working prisoners’ affiliation to the old-age pension system was closely linked to States’ choices of economic and social policy which is an area in which the States enjoyed a wide margin of appreciation. Moreover, there was no European consensus on social security for prisoners and only a small majority of Member States affiliated them to their old-age pension system.
The Court concluded that, by not having affiliated working prisoners to the old-age pension system, Austria had not exceeded its wide margin of appreciation afforded to it in that matter.
Regarding Article 4 of the Convention, the Court found that there was not sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system. Consequently, the compulsory work performed by the applicant without being affiliated to the old-age pension system was to be regarded as “work required to be done in the ordinary course of detention” within the meaning of Article 4 § 3 (a) of the Convention, and not forced labour.