SECOND SECTION

DECISION

Application no . 939/12 József KÁTAI against Hungary

The European Court of Human Rights (Second Section), sitting on 18 March 2014 as a Chamber composed of:

Guido Raimondi, President, Işıl Karakaş, Peer Lorenzen, András Sajó, Nebojša Vučinić, Helen Keller, Egidijus Kūris, judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 29 December 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr József Kátai, is a Hungarian national, who was born in 1958 and lives in Komló. He was represented before the Court by Mr A. Cech, a lawyer practising in Budapest.

The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties, may be summarised as follows.

3 . On 31 May 2007 the Pécs District Court, in a final and binding judgment, established the applicant ’ s disability as one of Grade III, that is, 67%. It was laid down that his condition was final and not susceptible to any further review. The judgment entitled the applicant, as of 1 April 2007, to a disability pension, the amount of which appears to have been 37.5% of his average monthly salary.

4 . Disability pensions were based on contributions paid, for a certain period of time, to the general pension fund responsible for the disbursement of old-age and other pensions.

5 . On 29 December 2011 Act no. CXCI was enacted, effective as of 1 January 2012, which introduced a new system of disability allowances. Beneficiaries were sent a letter and invited to apply, by 31 March 2012, for a reassessment of their condition by expert committees. Once applying for this within the time-limit, they became entitled to a transitional allowance (the amount of which does not differ from that of the previously received pension) until the reassessment took place.

6 . In the reassessment procedure, a disability allowance (the amount of which is 40% of the person ’ s former average monthly salary) or a rehabilitation allowance (amounting to 35% of the average monthly salary and disbursable for three years) can be granted, depending on the person ’ s real and present condition. If the person concerned no longer qualifies for either of the two allowances, the entitlement may be removed altogether. In either case, those concerned will lose other (such as transport, cultural and medical) benefits, formerly attached to their being pensioners.

7 . The parties agree that under the former rules, that is, under the provisions of Act no. LXXXI of 1997 on Social Security Pension Benefits as in force until 31 December 2011, the applicant was not expected to undergo periodical assessments, because by virtue of a final court judgment he had been held to be permanently disabled.

8 . In reply to the applicant ’ s letter of complaint to the Ministry of Human Resources, it was explained that the measure in question was warranted by the disproportionately high number in Hungary of those on disability pension (in Hungary, over 12% within the employable population, whereas the OECD average is 5.8%); that disability pensions would be replaced, depending on the individual case, by a rehabilitation allowance or a disability allowance; and finally, that the correct re-categorisation of beneficiaries of a disability pension necessitated an individualised review of the condition of all those concerned, including those having obtained a final court judgment on their degree of disability.

9 . In order to qualify potentially for the newly introduced allowance as well as for the transitional one, the applicant requested the review on 7 March 2012. To date, this review has not taken place. Currently, the Pension Disbursement Directorate disburses to him under the title “rehabilitation allowance” the amount of his Grade III disability pension valid as of 31 December 2011 and increased according to interim pension rises. He has submitted a medical certificate attesting that the anguish he has suffered on account of this pending situation caused him serious psychological ailments.

10 . A constitutional complaint concerning the impugned measure, filed by the Disabled Persons ’ Association ( Mozgáskorlátozottak Egyesületének Országos Szervezete ) and some of its members previously in receipt of disability pension , was rejected by the Constitutional Court on 4 February 2013 (no. 3027/2013. (II. 12.) AB), essentially for want of concrete issues of constitutionality (see also Constitutional Court decision no. 40/2012. (XII.6.)AB in paragraph 13 below).

B . Relevant domestic law

11 . Act no. LXXXI of 1997 [1] provided as follows:

Section 6(1)

“Personal pension benefits under the Social Security pension system are as follows:

a) old-age pension

b) disability pension

c) pension for disability sustained as a result of an accident.”

Section 23(1)

“Disability pension shall be due to a person who:

(a) suffered 67 per cent loss of capacity to work due to health problems, physical or mental impairments, without any perspective of amelioration during the following year... [and]

(b) acquired the necessary period of service [and]

(c) does not work regularly or earns considerably less than before having become disabled.”

Section 24(1)

“The periods of service required for disability pension are as follows:

– 2 years for persons under 22 years of age;

– 4 years for persons between the ages of 22 and 24; 3 years for persons in lines of work allowing for early retirement; ...

– 20 years for persons 55 years of age or older; 16 years for persons in lines of work allowing for early retirement.”

Section 36/A(1)

“Disability pension shall be due to a person who:

a) suffered [at least 79% loss of capacity to work, or the same between 50 and 79% if rehabilitation is not feasible], and

b) has the period of service required in respect of his age, and

c) [does not have an income or earns considerably less than before], and

d) does not receive sick pay or disability sick pay.”

Section 30(1)

“Entitlement to disability pension ceases if the pensioner is no longer disabled or if he works regularly and his income is not considerably less than what he could earn in his previous employment not taking in account his disability.”

Section 37(1)

“For persons who qualify as insured under the [Social Security Benefits and Private Pension Act], the period following 31 December 1997 is considered period of service, if for this time the prescribed pension contribution has been deducted from the insured person ...”

12 . Under the provisions of Act no. CXCI of 2011, which introduced a new system of allowances for persons with a reduced capacity for work, such allowances shall be due to individuals whose health condition is 60 per cent or less (if other conditions are met), according to the complex evaluation of the rehabilitation authority. That is to say, as compared to the old system which provided allowances for those who suffered a 50, 67 or 79 per cent loss of their capacity to work, the new system gives entitlement to some allowances already from a 40 per cent health deterioration. However, the new system is a two-tier construction: disability allowance shall only be due if, as a general rule, rehabilitation is not advisable. If rehabilitation is advised, rehabilitation allowance shall be payable for three years.

13 . In addition to some decisions adopted in constitutional complaint procedures, the Constitutional Court examined Act no. CXCI of 2011 in decision no. 40/2012. (XII.6.) AB, in pursuit of a motion from the Commissioner for Fundamental Rights. The Constitutional Court (which stated that although its competence was limited in matters pertaining to the Budget Act, it had competence in matters that affected human dignity and discrimination that amounted to a violation of dignity) held that the Constitution allowed the lawmaker to amend existing rules relating to pensions disbursed before pensionable age, to transfer those pensions into allowances, or to discontinue them if the person concerned is fit to work. The Constitutional Court also held that the Commissioner ’ s concerns as to the lack of transitional rules were unfounded (it is to be observed that the petition did not request the examination of the substance of those transitional rules or that of the new law). On grounds of constitutional rules providing for equal opportunities, the Constitutional Court also examined some provisions of the new law about the suspension of the allowances during periods when the beneficiary is gainfully employed. Some of those rules were found to be unconstitutional and repealed.

COMPLAINTS

14 . The applicant alleged that the legislative removal of his entitlement to a disability pension, originally adjudged in a final and binding court judgment, and his having to undergo an assessment afresh in order to potentially qualify for an allowance instead, frustrated his rights to legal certainty, non-discrimination and property. He relied on several provisions of the Convention and its Protocols.

THE LAW

15 . The applicant complained under Articles 6, 13 and 17 of the Convention that the impugned legislation had effectively removed a right recognised in a final and binding court judgment.

16 . Moreover, without relying on any particular provision of the Convention or its Protocols, the applicant submitted that the measure in question amounted to rendering conditional his pension rights, guaranteed in a final and binding court judgment, and this in a discriminatory fashion vis-à-vis those in receipt of old-age pension.

17 . Lastly, he asserted that the impugned legislative change infringed his right of property, in breach of Article 1 of Protocol No. 1. He submitted that the removal of the disability pension from the uniform pension scheme and its being stripped of the previously guaranteed constitutional protection represented an unlawful and arbitrary interference by the public authorities with the rights safeguarded. He further argued that the governmental aim of the restructuring of the disability allowance scheme was purely financial. He also submitted that the reform caused him to bear an excessive individual burden because, in addition to the present uncertainty, he had already lost a number of benefits and rights related to his status as a pensioner, such as reduced-fare tickets for public transport, thermal baths, cultural or touristic events or sites.

18 . The Government submitted that the applicant ’ s review had not yet taken place, a fact rendering his complaints premature. Should it turn out to be prejudicial for him, he could challenge that administrative decision in court. Moreover, he could challenge either the ensuing judicial decision or the impugned legislation as such before the Constitutional Court.

19 . The applicant contested these views, arguing in particular that the impending review decision would determine his entitlement to allowances anew, and not remedy the statutory annulment of his previous entitlements.

20 . Article 34 of the Convention provides as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

21 . In the present case, the Court observes that the applicant, as a former beneficiary of a disability pension, is in principle concerned by the legislation complained of.

22 . However, the reassessment of his condition with a view to establishing his new entitlement, if any, has not yet taken place. Moreover, the Court cannot overlook the fact that, pending the wait until this reassessment takes place, the applicant continues to be in receipt of his former entitlements.

23 . The Court is therefore satisfied that, to date, the applicant has not suffered any relevant material prejudice on account of the legislation in question.

24 . In the present decision, the Court would refrain from embarking on a closer scrutiny of the legislative changes potentially affecting the applicant ’ s entitlement to disability allowances, considering that it is sufficient to rule on the admissibility of the application in the light of the situation as it stands.

25 . In these circumstances, the Court is satisfied that the applicant cannot claim to be a victim of a violation of his rights under the Convention, for the purposes of Article 34.

26 . It follows that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President

[1] As in force between 1 January and 11 March 2011. All these provisions (save section 3(1)) were repealed by Act no. CXCI of 2011.