FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37452/02 by Ernst Walter STUMMER against Austria

The European Court of Human Rights (First Section), sitting on 11 October 2007 as a Chamber composed of:

Mr C.L. Rozakis , President, Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , Mr G. Malinverni , judges, and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 14 October 2002,

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

The applicant, Mr Ernst Walter Stummer, is an Austrian national who was born in 1938 and lives in Vienna . He was represented before the Court by Mr A. Bammer, a lawyer practising in Vienna . The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs .

A. The circumstances of the case

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

The applicant spent lengthy periods of his life in prison.

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

By decision of 8 March 1999 the Pension Office dismissed the application. Referring to Section 236 of the General Social Security Act ( Allgemeines Sozialversicherungsgesetz ), it noted that the applicant had failed to acquire the required minimum of 240 insurance months. A list of the applicant ’ s insurance periods starting with October 1953 was appended to the decision. It 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.

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 during 28 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.

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 of insurance months. Referring to Section 4 § 2 of the General Social Insurance 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 10 ObS 66/90 of 27 February 1990 and judgment 10 ObS 52/99s of 16 March 1999, see below) their work, corresponding to a legal obligation, differed from work performed by employees on the basis of a work contract. The difference in treatment under social security law did not disclose any appearance of discrimination.

The applicant, now assisted by counsel, appealed. He argued in particular that the wording of Section 4 § 2 of the General Social Insurance 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 were affiliated to the Unemployment Insurance. There was no reason not to affiliate them to the health and accident insurance and the old-age pension.

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.

The fact that, since the 1993 amendment of the Execution of Sentences Act ( Strafvollzugsgesetz ), prisoners were affiliated to the Unemployment Insurance was not conclusive as regards the question of their affiliation to the old-age pension. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislator to decide whether or not change the provisions relating to the social insurance of prisoners.

Finally, the Court of Appeal noted that it did not share the applicant ’ s doubts regarding a possible unconstitutionality of the exemption of work performed by prisoners from the pension insurance scheme.

On 12 February 2002 the Supreme Court ( Oberster Gerichtshof ) dismissed the applicant ’ s appeal on points of law. The judgment was served on the applicant on 6 May 2002 .

On 29 January 2004 the applicant completed his last prison term. Between 30 January 2004 and 26 August 2004 he received unemployment benefits of 18.02 euros (EUR) per day. Currently, he receives emergency assistance ( Notstandshilfe ) of EUR 15.77 per day.

B. Relevant domestic law and practice

1. The General Social Security Act

(a) General Rules

The General Social Security Act governs the system of social insurance for persons employed in Austria .

Section 4 of the General Social Security Act regulates obligatory affiliation to the social security system. Pursuant to Section 4 § 1 (1) employees are affiliated to the health and accident insurance and the old-age pension scheme. Section 4 § 2 defines an employee as any person being occupied against remuneration in a relationship of personal and economic dependency.

Section 17 provides that persons who are no longer covered by the obligatory affiliation to the social security system may continue to pay voluntary contributions ( freiwillige Weiterversicherung ), if they had at least 12 insurance months within the last 24 months within the system or at least three insurance month during each of the last 5 years.

(b) Position of prisoners

As a matter of principle, prisoners are not affiliated to the general social insurance system. According to the Supreme Court ’ s case-law prisoners performing work are not considered as employees within the meaning of Section 4 § 2 of the General Social Security Act:

In a judgment of 27 February 1990 (10 ObS 66/90) the Supreme Court had to deal with the appeal of a former prisoner against the refusal of an invalidity pension on the ground that he did not have the required number of insurance months. The Supreme Court found that, according to established court practice and the opinion of academic writers, work performed during the execution of a sentence was based on a legal obligation and not on an employment contract and did not fall within the scope of Section 4 § 2 of the General Social Security Act. Referring to a judgment of the Constitutional Court of 26 November 1971 (B 128/71), it noted that the legislator ’ s decision not to affiliate prisoners to the health and accident insurance and to the old-age pension scheme was based on the distinction between voluntary employment and obligatory work. It was not contrary to the principle of non-discrimination ( Gleichheitsgrundsatz ), since the difference in the legal position was based on a difference in fact.

In a judgment of 16 March 1999 (10 ObS 52/99s) the Supreme Court confirmed its previous decision.

Periods spent in prison are only taken into consideration as substitute periods or neutral periods in specific circumstances defined in the General Social Security Act. For instance, periods spent in prison for which compensation has been granted under the Criminal Proceedings Compensation Act ( Strafrechtliches Entschädigungsgesetz ), i.e. periods of unlawful imprisonment, are counted as substitute periods. Periods spent in pre-trial detention are counted as neutral periods, if the proceedings are discontinued or result in an acquittal.

Entitlements from the health, accident and pension insurance scheme are suspended during a prison term pursuant to Section 89 of the General Social Security Act. The livelihood of prisoners including health care is to be provided by the prison authorities.

2. The Unemployment Insurance Act

Since 1993 prisoners who perform work are affiliated to the Unemployment Insurance pursuant to Section 66a of the Unemployment Insurance Act ( Arbeitslosenversicherungsgesetz ). Entitlements under this Act include access to training courses, job search facilities, unemployment benefits and, upon their expiry, payment of emergency assistance.

3. The Execution of Sentences Act

Pursuant to Section 44 § 1 of the Execution of Sentences Act any prisoner who is fit to work is obliged to perform work assigned to him.

Section 45 deals with 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 performed for private employers.

Pursuant to Section 46 § 3 prison authorities may conclude contracts with private enterprises as regards prisoners ’ work.

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

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 vary between EUR 3.98 and EUR 6.97.

Pursuant to Section 32 any prisoner has to contribute to the costs of the execution of his sentence, unless falling within the scope of certain exceptions. If the prisoner works, the contribution amounts to 75% of his remuneration. It is deducted automatically from the sum to be paid to the prisoner.

C. Relevant international materials

On 11 January 2006 the Committee of Ministers of the Council of Europe adopted new European Prison Rules (Recommendation Rec(2006)2), replacing the 1987 European Prison Rules (Recommendation R (87) 3).

Rule 26 of the new European Prison Rules deals with various aspects of prison work. The Commentary on that Rule underlines the principle of normalisation of prison work in that provisions for health and safety, working hours and “even involvement in national social security systems” should reflect those for workers on the outside.

Rule 26.17 provides

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

The 1987 European Prison Rules were silent on that point.

The new European Prison Rules also deal with work as one aspect of the regime for sentenced prisoners.

Rule 105.2 reads as follows

“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.”

COMPLAINT

The applicant complained under Article 4 of the Convention that he was not affiliated to the old-age pension system for work performed as a prisoner and that consequently he was refused an old-age pension for lack of insurance months. He submitted that the distinction between work performed during detention and work while being at liberty was objectively unjustified .

THE LAW

The applicant complained that the exemption of prison work from affiliation to the old-age pension system was discriminatory and deprived him of receiving pension benefits. He relied on Article 4 of the Convention and, in substance, also on Article 14 and Article 1 of Protocol No. 1.

Article 4, so far as relevant, 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; ...”

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.”

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.”

The Government, referring to the Court ’ s case-law, argued in the first place that there were important differences between work performed in the context of regular employment situations and work performed by prisoners. Firstly, persons living in freedom entered freely into an employment contract, while prisoners performed work on the basis of a statutory obligation. Secondly, persons in regular employment situations usually aimed primarily at earning their livelihood while prisoners ’ livelihood was provided by the prison authorities and their work rather served the purpose of keeping them usefully occupied and of facilitating their re-integration. It followed that the financial aspect of remuneration played a minor role in the case of prisoners ’ work. Moreover, the remuneration for work performed by prisoners was not based on an agreement between employer and employee but was laid down by law, namely Section 52 of the Execution of Sentences Act.

Regarding these factual differences, the legislator ’ s decision not to affiliate prisoners performing work to the compulsory social security scheme was not discriminatory. Consequently, no social security contributions were due for prison work and such periods did not count as contribution periods. Moreover, having regard to the system of remuneration of prison work as a whole it had to be born in mind that prisoners did not necessarily earn enough to pay full social security contributions. Expecting the community of insured persons to accept periods for which no meaningful contributions were made as giving rise to pension entitlements would amount to granting prisoners an unjustified preferential treatment.

The decision not to count periods, during which a prisoner worked, as substitute periods or neutral periods either was also based on objective reasons. Substitute periods were granted when a person was prevented from paying contributions on socially accepted grounds, such as military service, childbirth, or education. Periods spent in prison were only considered as substitute periods, if the person concerned had been granted compensation under the Criminal Proceedings Compensation Act (see above, relevant domestic law). To treat periods spent in prison on the basis of a lawful conviction on an equal footing with these situations of unlawful imprisonment would be discriminating in the sense of treating factually different situations equally.

Moreover, prisoners had a possibility to pay voluntary contributions under Section 17 of the General Social Security Act. Contributions could also be reduced in order to take account of their economic circumstances.

In any case, the legislator enjoyed a considerable discretion in the organisation of the social security system. The decision not to affiliate prisoners to the compulsory health, accident and old-age pension scheme provided for in the General Social Security Act did not mean that they did not enjoy any social coverage. Other instruments of the welfare state applied. The applicant in the present case received unemployment benefits and since their expiry, continued to receive emergency assistance.

Finally, the Government pointed out that cases like the present one with periods of detention totalling 28 years were very rare. The majority of prisoners were in a position to obtain a sufficient number of insurance months on account of the periods worked outside prison. In that context, the Government also explained that the decision to affiliate prisoners to the unemployment insurance scheme but not to the pension scheme was motivated by the consideration that unemployment insurance was the most important and effective instrument for the purpose of furthering a prisoner ’ s reintegration after release. Unemployment benefits did not only consist in payments but also gave access to training courses and other labour market services aimed at facilitating the job search.

The applicant, for his part, maintained that the interpretation which the domestic courts gave Section 4 § 2 of the General Social Security Act, i.e. the distinction drawn between voluntary work on the basis of a regular work contract and prisoners ’ work performed in fulfilment of their statutory obligation to work, was not a convincing reason for the difference in treatment in social security law. He claimed firstly, that the two situations were not fundamentally different. In reality also the vast majority of people living in freedom were obliged to work, though not by law, but by the necessity to gain their livelihood. Work, whether performed in prison or in liberty, always served a variety of different purposes going beyond the financial aspect, such as developing relationships with others or acquiring social status and recognition. Secondly, the types of work performed by prisoners were not fundamentally different from the types of work performed by other persons.

In sum, the applicant argued that prisoners performing work are in a relevantly similar situation than persons performing work in liberty. Their exclusion from affiliation to the social security scheme in general and the pension insurance in particular therefore required justification. The Government ’ s argument that accepting periods of prison work for which no meaningful contributions were paid as insurance periods would grant prisoners an unjustified privilege as compared to other workers who had to pay full social security contributions, did not carry. Since pursuant to Section 51 of the Execution of Sentences Act, the State received the proceeds for the work of prisoners, it could reasonably be expected to pay social security contributions. The Government ’ s further argument whether or not it would be justified to accept periods of detention as substitute periods without contribution payments, was therefore not to the point.

As to the possibility for prisoners to make voluntary contributions to the pension scheme, the applicant argued that many prisoners did not fulfil the requirements of Section 17 of the General Social Security Act of having at least 12 insurance months within the last 24 calendar months. Moreover, the costs of voluntary insurance normally exceeded the limited financial resources of prisoners.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these re asons, the Court unanimously

Declares the application admissible without prejudging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President