Communicated on 2 March 2021 Published on 22 March 2021

FIFTH SECTION

Application no. 26922/19 P.C. against Ireland lodged on 8 May 2019

STATEMENT OF FACTS

The applicant, P.C., is an Irish national, who was born in 1940 and lives in Dublin. He is represented before the Court by Mr J. MacGuill , a lawyer practising in Dublin 7.

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

The applicant made Pay Related Social Insurance ( ‘ PRSI ’ ) contributions throughout his working life and on that basis qualified for receipt of the State pension (Contributory) ( ‘ the SPC ’ ) under ss. 108-109 of the Social Welfare Consolidation Act 2005 ( ‘ the 2005 Act ’ ) when he reached the age of 66 years on 10 February 2006. He received weekly SPC payments from that date until 18 March 2011.

On 25 March 2011 the applicant was convicted of sixty counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 and fourteen counts of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981. He has been in custody since that date. On 26 May 2011 he was sentenced to fifteen years imprisonment with the final three years suspended. According to the information available to the Court the applicant was expected to be released in March 2020.

Section 249(1) of the 2005 Act disqualifies persons from receiving the SPC and other benefits for any period during which that person ‘ is undergoing imprisonment or detention in legal custody ’ ( ‘ the disqualification ’ ) While s. 249(2) and secondary legislation made under s. 249(1) excludes certain persons from the disqualification, none were applicable to the applicant (see section on Domestic law and practice, below). Accordingly, following his conviction and imprisonment he ceased to receive the SPC.

On 2 July 2013 the applicant issued plenary proceedings against the Minister for Social Protection, Ireland and the Attorney General, seeking declarations that s. 249(1) of the 2005 Act was incompatible with Articles 34, 38, 40.1, 40.3 and 43 of the Irish Constitution, damages for breach of the applicant ’ s constitutional rights and an injunction directing the defendants to make provision for payment of the SPC to the applicant. In those proceedings he also sought damages under s. 3 of the European Convention on Human Rights Act 2003 ( ‘ the 2003 Act ’ ) for breaches of Article 1 of Protocol No. 1 of the Convention and Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1. In the alternative he sought a declaration under s. 5 of the 2003 Act that s. 249(1) of the 2005 Act was incompatible with the Convention.

In the applicant ’ s statement of claim, issued on 30 July 2013, he claimed that the termination of payment of the SPC left him destitute, with no other source of income except a prison gratuity, initially paid at 18.90 euros (EUR) per week but reduced to EUR 11.90 as the applicant was unable to work. Unlike prisoners who received money from their family or who had access to private pensions or state pensions unaffected by any disqualification the applicant had no other source of income. The applicant ’ s statement of claim particularised the disadvantages he claimed resulted from his limited means, such as having no money to spend in the prison shop and being unable to buy his own clothing, coffee or electrical goods.

The High Court hearing took place over four days in November 2015. The applicant made arguments under Article 1 of Protocol No. 1 alone and in conjunction with Article 14:

The applicant argued that in making the necessary PRSI contributions he became entitled to payment of the SPC, acquiring a property right protected by the Constitution and Article 1 of Protocol No. 1 of the Convention. The disqualification was an interference with that right. The applicant referred to the Court ’ s statement in Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, § 54, ECHR 2005 ‑ X, that where a contracting state had legislation providing for the payment as of right of a welfare benefit that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol 1 for persons satisfying its requirements. The applicant also relied on Paulet v. the United Kingdom , no. 6219/08, § 64, 13 May 2014, to argue the that the Court could not dispose of his complaint of interference with a property right by merely finding that the interference was in the public interest, but must weigh the justification offered for the disqualification against the impact of the disqualification to determine if it was proportionate. The applicant noted the Commission decision in Szrabjer and Clarke v. United Kingdom (App. Nos. 27011/95 and 27004/95, Commission decision of 23 October 1997, unreported), but argued that this decision had been overtaken by subsequent cases, including Stec (cited above), Andrejeva v. Latvia [GC], no. 55707/00, ECHR 2009 and Stummer v. Austria [GC], no. 37452/02, ECHR 2011. The applicant argued that s. 249(1) was discriminatory in its effects. Prisoners with other income, private pensions or other categories of public pensions were not affected in a similar manner to the applicant. There was no legitimate basis for this difference in treatment. The disqualification discriminated against the applicant as an older person of pensionable age with no other source of income serving a prison sentence. The applicant also argued that the disqualification was an additional punishment to his prison sentence and a legislative interference with the sentencing function of the Courts, violating the separation of powers under Articles 34.1 and 38.1 of the Constitution. He argued that the effects of the disqualification over the period of his sentence were equivalent to a fine of approximately EUR 100,000.

Before the High Court the defendants described the social insurance fund from which the SPC is paid as funded through contributions from employees, employers, health insurance contributions and the State. No person retained an individual attachment to monies paid into the fund and those monies were paid to those in need at any given time. The SPC was a mere statutory right created by the legislation without the status of a property right under the Convention. The applicant was always excluded from receiving the SPC during imprisonment and did not forfeit a vested right. Persons only held a pecuniary interest in a social security benefit if they met the conditions set down by national law (see Andrejeva v. Latvia , cited above). The defendants also relied on Szrabjer and Clarke v. the United Kingdom (cited above). The SPC was a benefit enjoyed pursuant to a wider legislative scheme for social security containing disqualifications excluding persons from receiving benefits when absent from the State, imprisoned or otherwise detained in legal custody. The SPC was intended to meet living costs. The disqualification was not punitive but, the defendants argued, it prevented prisoners from being unjustly enriched when they were being maintained by the State. There was no discrimination because s. 249(1) of the 2005 Act excluded all similarly situated prisoners from similar benefits. Any difference in treatment was legitimate, proportionate and within the margin of appreciation recognised by the Court.

A written judgment issued on 29 April 2016 ( [2016] IEHC 315). The High Court judge referred to Szrabjer and Clarke v. the United Kingdom where the Commission found that a similar disqualification could be considered as being in the public interest for similar reasons to those proposed by the defendants. He did not accept Szrabjer had been overtaken by later cases. He noted that in Carson and Others v. the United Kingdom [GC], no. 42184/05, ECHR 2010, §§ 84-85, the Court had accepted national insurance contributions in the United Kingdom were similar to general taxation, with no exclusive link to retirement pensions; such payments were not analogous to payments to private pension schemes, but formed part of revenue paying for a range of benefits intended to ensure a minimum universal standard of living. Accordingly , payment of PRSI contributions could not give rise to a property right under the Convention. Referring to Stec and others v. the United Kingdom (cited above, § 52 ), Stummer v. Austria [GC], no. 37452/02, §§ 88-89, ECHR 2011 and Carson and others v. the United Kingdom (cited above, § 61) he noted the margin of appreciation allowed to contracting states in general measures of economic and social strategy in the context of welfare systems. Similar considerations arose under Irish law; a finding that such legislation created a property right would fetter the legislature ’ s discretion in similar decisions, offending the separation of powers. Accordingly, he found that the applicant did not have a property right under the Constitution or the Convention.

The High Court accepted that Article 14 in conjunction with Article 1 of Protocol No. 1 applied and that a similar discrimination test applied under the Constitution. However, he accepted the defendants ’ justification for the disqualification and rejected the applicant ’ s comparisons with persons receiving private pensions or other income; liability for payment of private pensions did not rest with the State and the recipients might receive and be disqualified from receiving the SPC in the same circumstances as the applicant. The disqualification applied equally to all citizens and a similar disqualification applied to other social welfare benefits. The purpose of the SPC was to provide a basic standard of living in retirement; it was rational and proportionate to suspend payment during periods when a person ’ s needs were being met by the State, particularly as the value of the SPC was unlikely to exceed the basic cost of living. There was thus no difference in treatment between the applicant and others, or, if there was such a difference, this did not give rise to a breach of Article 14 where it was based on a reasonable and objective justification. The judge rejected the applicant ’ s claim that the disqualification was an extra-judicial punishment contrary to Articles 34 and 38 of the Constitution. Final orders dismissing the applicant ’ s claim were perfected on 29 June 2016.

The applicant was granted leave to appeal directly to the Supreme Court on 16 December 2016 (a “leapfrog appeal”) on grounds including the question of whether the disqualification was compatible with Article 1 of Protocol No. 1 alone and in conjunction with Article 14. In their written submissions the parties repeated their arguments before the High Court,

The Supreme Court dealt with the applicant ’ s appeal in a judgment issued on 27 July 2017 ( MacMenamin J.; Denham C.J. McKechnie, Clarke and O ’ Malley JJ concurring) ([2017] IESC 63):

The Supreme Court found that ss. 108-109 of the 2005 Act created a justiciable, conditional legal entitlement; it was not necessary for the purposes of the case to hold/find that that this entitlement constituted any form of property right. The court focussed instead on whether the disqualification was a penalty imposed in a manner which breached the separation of powers under Articles 34 and 38 of the Constitution. Article 34.1 of the Constitution states:

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

Article 38.1 of the Constitution states:

“No person shall be tried on any criminal charge save in due course of law.”

The Supreme Court examined the 2005 Act and the regulations thereunder disqualifying persons from receiving a range of benefits during imprisonment, temporary detention or absence from the State (see section on Domestic law and practice, below) . The disqualification from the SPC did not apply to persons imprisoned pending a criminal trial but later acquitted, to persons found not guilty by reason of insanity or to persons detained in institutions for the treatment of mental illness. Accordingly, the court did not accept the purpose of the disqualification was to avoid the unjust enrichment of persons who were being maintained by the State. The court concluded that the disqualification was a sanction imposed on persons found to be ‘ fully criminally culpable ’ of serious crimes warranting imprisonment. MacMenamin J. stated:

“59. To my mind, the prohibition on the payment of the SPC to sentenced persons can only constitute an additional punishment. Article 34 of the Constitution provides that justice shall be administered in courts established by law, by judges appointed under the Constitution. Article 38 provides that no person shall be tried on any criminal charge, save in due course of law. But this punishment is not imposed by a court at all. As such, it contravenes Articles 34 and 38 of the Constitution. The imposition of penalties, in the context of sentencing a person convicted of crimes, is a function exclusively reserved by Article 34 of the Constitution to the courts. Sentencing is an integral part of trial in due course of law, guaranteed by Article 38 of the Constitution. The provision, as applied, offends against those principles.

[...]

62. The effect of s.249 (1) is to result in an impermissible legislative incursion into the judicial function by making provision for the imposition of an extra penalty upon an individual in receipt of SPC, without permitting the fact of this to be taken into account by a sentencing court in exercising its discretion as to the appropriate penalty to be imposed upon a person convicted of an offence that attracts a sentence of imprisonment. The manner in which the extra penalty operates fails to safeguard the appellant ’ s right to have justice administered in courts established by law, by judges appointed in the manner provided by the Constitution. In my view, the section as applied contravenes the principles of separation of powers, and administration of justice, fundamental to the Constitution, and as more fully explained by the courts in Deaton .

[...]

65. My conclusion is, therefore, that the State may not operate a disqualification regime that applies only to convicted prisoners and, thereby, constitutes an additional punishment not imposed by a court dealing with an offender.”

MacMenamin J. stated that it was unnecessary to proceed to any full consideration of the applicant ’ s Convention rights . He briefly described Stec and others v. the United Kingdom (cited above) and Stummer v. Austria (cited above) but noted that these judgments did not bring the case any further.

Given the finding of unconstitutionality on separation of powers grounds, the Supreme Court considered it unnecessary to examine whether the disqualification breached the anti-discrimination requirements of Article 40.1 of the Constitution.

However, MacMenamin J. did make several obiter statements concerning the proportionality of the disqualification:

“[34] ...The impugned provision appears to affect all prisoners without distinction as to means. It is said that the objective of the Act of 2005 is social solidarity, and to prevent unjust enrichment; but the provision impacts harder on prisoners of no means, or few means. In fact, all prisoners, regardless of means, are subject to the disqualification, but prisoners who have a private pension, or even an Army or other public service employment pension, are entitled to retain these whilst in prison. It is hard to avoid the conclusion that the measure is both arbitrary and discriminate.

[...]

[45] ... The Minister submits there has been a breach of the statutory conditions. But, what is undoubted is that the provision is mandatory, not subject to any provisions of law, and affects some prisoners in a more severe way than others in receipt of private pensions, or other pensions, emanating from the State, such as Army pensions.

[46] ... The sanction which arises here is not as a consequence of a judicial order at all. There is no judicial finding or determination which triggers the section. There is no exercise of judicial discretion regarding the extent or impact of the disqualification in question. It is the fact of imprisonment.”

In conclusion, the Supreme Court concluded that the State may not operate a disqualification regime that applies only to convicted prisoners and thereby constitutes an additional punishment not imposed by a court dealing with the offender. However, this did not necessarily have the result that prisoners must receive the full payment of the relevant benefit while incarcerated.

The court declined to make an immediate declaration of invalidity or a finding as to the applicant ’ s entitlement to damages at that time. MacMenamin J. indicated that it was appropriate for the State to be given an opportunity to consider a legislative solution and adjourned the proceedings to allow the parties to make submissions on the appropriate remedy and the precise form a declaration concerning the constitutional invalidity of the impugned provision should take in the circumstances of the case.

The parties provided several sets of written submissions between October 2017 and February 2018 as to the appropriate remedy at the request of the court. Case management hearings were held in November 2017 and January 2018:

The applicant argued in his submissions that no broader legislative response was required and if such a response was necessary, this was not a matter for the court. The court had made a finding that the provision was unconstitutional, and he was thus entitled to an immediate declaration of invalidity and the full value of the lost pension payments. On 2 October 2017 he calculated the value of those payments at EUR 78,968.31 with an ongoing loss of EUR 238.30 per week. He sought an unspecified sum to compensate him for consequential damages.

The defendants argued that the court ’ s finding could not be addressed in isolation and did not have retrospective effect or entitle the applicant to the full value of the lost payments. Any claim for damages must flow directly from the invalidity and its nature. The Supreme Court had not found that a property right had been breached; rather the applicant had lost an opportunity to address the sentencing court on whether a disqualification should be applied to him. It could not be presumed that the legislature ever intended convicted persons to receive payments during imprisonment or would have made legislation to this effect. On 15 January 2018 the defendants made an interim payment of EUR 7 , 500 to the applicant.

A further oral hearing took place in April 2018. The Supreme Court delivered four separate judgments on 28 November 2018 ([2018] IESC 57):

MacMenamin J. stated that the 2017 judgment did not find any breach either of a constitutionally protected property right or of the Constitution ’ s equality guarantees. The primary redress for the applicant was a declaration that s. 249(1)(b) of the 2005 Act was invalid having regard to Articles 34 and 38.1 of the Constitution, effective from the date of the judgment. A finding of invalidity alone did not generally give rise to a claim for damages, particularly when the State merely applied the challenged law in a bona fide manner. A claim in damages required a breach of personal constitutional rights accompanied by an actionable wrong on the part of the defendant causing the damages. The applicant had shown only that s. 249(1) of the 2005 Act was constitutionally invalid because it imposed an extra-judicial punishment on prisoners. This alone did not give rise to a claim in damages.

O ’ Donnell J. concluded that the applicant was entitled to a declaration that s. 249(1)(b) was invalid but no entitlement to damages arose from a declaration alone. He examined the applicant ’ s claim that the removal of the impugned provision left him with a legal entitlement to the pension payments for the relevant period. A declaration of invalidity established the nullity of the provision from the date of enactment but did not invalidate all steps taken on foot of that provision. To treat the applicant as having been entitled to the benefit all along would be to create a new form of statutory entitlement not approved by the legislature which would clearly run contrary to the intention of the legislation. He held that the applicant was entitled to recover by way of compensation benefits limited to a period approximating the time taken by the proceedings, which he calculated at EUR 10,000 of which EUR 7,500 had already been paid.

Clarke C.J. and McKechnie J. delivered brief judgments concurring with O ’ Donnell J., in particular as to the payment of a sum of EUR 10,000. Final orders issued on 11 January 2019.

Bunreacht na hÉireann (“the Constitution”)

Article 34.1 of the Constitution states:

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

Article 38.1 of the Constitution states:

“No person shall be tried on any criminal charge save in due course of law.”

Article 40.1 of the Constitution states:

“All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the state shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

Article 40.3 of the Constitution states:

“1 o the state guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 o the state shall , in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

Article 43.1 of the Constitution states:

“1 o the state acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

2 o the state accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.”

Article 43.2 of the Constitution states:

“1 o the state recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this article ought, in civil society, to be regulated by the principles of social justice.

2 o the state, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.”

The European Convention on Human Rights Act 2003 ( ‘ the 2003 Act ’ )

Section 3 of the 2003 Act states:

“(1 ) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State ’ s obligations under the Convention provisions.

(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.

[...]”

Section 5 of the 2003 Act states:

“(1) In any proceedings, the High Court, the Court of Appeal or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as ‘‘ a declaration of incompatibility ’’ ) that a statutory provision or rule of law is incompatible with the State ’ s obligations under the Convention provisions.

(2) A declaration of incompatibility—

(a) shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made, and

(b) shall not prevent a party to the proceedings concerned from making submissions or representations in relation to matters to which the declaration relates in any proceedings before the European Court of Human Rights.

(3) The Taoiseach shall cause a copy of any order containing a declaration of incompatibility to be laid before each House of the Oireachtas within the next 21 days on which that House has sat after the making of the order.

(4) Where—

(a) a declaration of incompatibility is made,

(b) a party to the proceedings concerned makes an application in writing to the Attorney General for compensation in respect of an injury or loss or damage suffered by him or her as a result of the incompatibility concerned, and

(c) the Government, in their discretion, consider that it may be appropriate to make an ex gratia payment of compensation to that party ( ‘‘ a payment ’’ ), the Government may request an adviser appointed by them to advise them as to the amount of such compensation (if any) and may, in their discretion, make a payment of the amount aforesaid or of such other amount as they consider appropriate in the circumstances.

(5) In advising the Government on the amount of compensation for the purposes of subsection (4), an adviser shall take appropriate account of the principles and practice applied by the European Court of Human Rights in relation to affording just satisfaction to an injured party under Article 41 of the Convention.”

The Social Welfare Consolidation Act 2005 ( ‘ the 2005 Act ’ )

Part 2 of the 2005 Act ( ‘ Social Insurance ’ ) contains ss. 6-138. Chapter 15 ( ‘ State Pension (Contributory) ’ ) contains ss. 108 to 113B. Section 108 states:

“(1 ) Subject to this Act, a person shall be entitled to State pension (contributory) where he or she has attained pensionable age and satisfies the contribution conditions in section 109 .”

Section 109 of the 2005 Act sets down the conditions of eligibility for the State pension (Contributory).

Part 2 of the 2005 Act also provides for the Illness Benefit (Chapter 8), the Maternity Benefit (Chapter 9), the Health and Safety Benefit (Chapter 10), the Adoptive Benefit (Chapter 11), the Jobseeker ’ s Benefit (Chapter 12), the Occupational Injuries Benefit (Chapter 13), the Carer ’ s Benefit (Chapter 14), the State Pension (Transition) the Invalidity Pension (Chapter 17), the Widow ’ s Pension (Chapter 18), the Bereavement Grant (Chapter 19) and the Widowed Parent Grant (Chapter 20).

Section 249(1) of the 2005 Act (as amended) states:

“(1 ) Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit under Part 2 (including any increase of benefit) for any period during which that person—

(a) is absent from the State, or

(b) is undergoing imprisonment or detention in legal custody.

( 1 A) A person shall not be regarded as undergoing detention in legal custody for the purposes of entitlement to disability allowance while the person is detained for treatment pursuant to –

(a) an admission order or renewal order made under the Mental Health Act 2001,

(b) an order made under section 38 of the Health Act 1947,

(c) an order made under section 4 or section 5 of the Criminal Law (Insanity) Act 2006,

(d) an order made under section 17 of the Lunacy (Ireland) Act 1821, or

(e) an order made under section 2 of the Trial of Lunatics Act 1883.

[...]

(3) Regulations may provide for the suspension of payment to or in respect of any person during any period mentioned in subsection (1) or (2) which is excepted from the operation of that subsection or which is payable otherwise than in respect of that period.

(4) Notwithstanding a disqualification by virtue of subsection (1) for receiving a benefit which includes an increase, the increase shall, in the cases that may be prescribed, be paid to the prescribed person.

(5) Regulations for the purposes of this section may be so framed as to make payment of bereavement grant, invalidity pension, State pension (transition) and widowed or surviving civil partner grant, subject to any specified conditions, limitations or restrictions and, in particular, in the case of persons absent from the State, may modify the periods which may be regarded for the purposes of section 114 as periods of retirement.

(6) A person shall be disqualified for receipt of jobseeker ’ s allowance, pre ‑ retirement allowance, supplementary welfare allowance, disability allowance or farm assist (including any increase in such allowance or assistance) while he or she is—

(a) resident, whether temporarily or permanently, outside the State, or

(b) undergoing imprisonment or detention in legal custody.”

The Social Welfare (Consolidated Claims, Payments and Control) Regulations 2007 (Statutory Instrument No. 142 of 2007) (as amended) ( ‘ the 2007 Regulations ’ ) regulate the application of s. 249 of the 2005 Act.

Article 217 of the 2007 Regulations states:

“Notwithstanding section 249, a person who is absent from the State shall not be disqualified for receiving—

(a) State pension (contributory), widow ’ s (contributory) pension, widower ’ s (contributory) pension, surviving civil partner ’ s (contributory) pension, guardian ’ s payment (contributory) or bereavement grant, (including any increase thereof), by reason only of the person being absent from the State,

[...]”

Article 218(1) of the 2007 Regulations states:

“(a) Section 249 shall not operate so as to disqualify a person for receiving illness benefit, maternity benefit, jobseeker ’ s benefit, State pension (contributory), State pension (transition), invalidity pension, widow ’ s (contributory) pension, widower ’ s (contributory) pension, surviving civil partner ’ s (contributory) pension, bereavement grant or guardian ’ s payment (contributory), (including in each case, subject to paragraph (b), any increase thereof), in respect of any period during which the person is detained (other than in the case of a person found not guilty by reason of insanity under the provisions of the Criminal Law (Insanity) Act 2006 (No. 11 of 2006)) in any institution for the treatment of mental illness or infectious disease.”

COMPLAINTS

The applicant complains that s. 249(1) of the Social Welfare Consolidation Act 2005, by excluding him from receiving the State Pension (Contributory) during his term of imprisonment, breached his rights under Article 1 of Protocol No. 1 of the Convention.

The applicant complains under Article 14 taken in conjunction with Article 1 of Protocol No. 1 that the disqualification in s. 249(1) of the 2005 Act discriminated against him based on his age, his status as a convicted person serving a sentence of imprisonment and relative to other prisoners in receipt of private income and other categories of public and private pensions not affected in an equivalent manner.

The applicant complaints that the decision of the Supreme Court not to examine his Convention complaints denied him an effective remedy for breach of his Convention rights contrary to Article 13.

The applicant complains under Article 1 of Protocol No. 1 in conjunction with Article 13 that the decision of the Supreme Court not to award him the full value of the State pension (Contributory) payments that he would have received but for the disqualification contained in s. 249(1) of the 2005 Act denied him an effective remedy for breach of his Convention rights.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all domestic remedies with regard to his complaints under Article 1 of Protocol No. 1 of the Convention taken alone and in conjunction with Article 14?

Questions under Article 1 of Protocol No. 1

2. Can it be said that, for this applicant, the State Pension (Contributory) constituted a ‘ possession ’ within the meaning of Article 1 of Protocol No. 1, having regard to the relevant case-law of the Convention organs, see in particular Szrabjer and Clarke v. United Kingdom (App. No. 27011/95 and 27004/95, Commission decision of 23 October 1997, unreported) and Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01, ECHR 2005 ‑ X?

3. Without prejudice to the parties ’ answers to the previous question, having regard to the disqualification contained in s. 249(1) of the Social Welfare Consolidation Act 2005, if the applicant ’ s right to receive the State Pension (Contributory) was a proprietary interest for the purposes of Article 1 of Protocol No. 1, did that proprietary interest extend to the right to receive a pension while serving a sentence of imprisonment, in particular having regard to Bellet , Huertas and Vialatte v. France ( dec. ), nos. 40832/98, 40833/98 and 40906/98, 27 April 1999, Rasmussen v. Poland , no. 38886/05, §§ 68-76, 28 April 2009 and Béláné Nagy v. Hungary [GC], no. 53080/13, §§ 80-89, 13 December 2016?

4. Subject to the foregoing questions:

- Has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1, in particular having regard to Szrabjer and Clarke v. United Kingdom (App. No. 27011/95 and 27004/95, Commission decision of 23 October 1997, unreported)?

- What were the consequences for the lawfulness of the impugned disqualification of the Supreme Court ’ s finding in 2017 that s. 249(1) of the 2005 Act was unconstitutional, of its decision at that time not to make an immediate declaration concerning its constitutional invalidity and of the precise form of the declaration finally granted in 2018?

- What were the legitimate aim(s) pursued by the impugned disqualification?

- Did the alleged deprivation impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 59, ECHR 1999-V)?

Questions under Article 1 of Protocol No. 1 in conjunction with Article 14

5. The parties should also address whether alternatively or additionally:

- Does the SPC come within the ambit of Article 1 of Protocol No. 1 so that Article 14 is applicable?

- Has the applicant suffered discrimination in the enjoyment of his Convention rights, contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1?

Questions under Article 13

6. Did the decision of the Supreme Court not to examine the applicant ’ s Convention complaints or any analogous complaint under the Constitution deny him an effective remedy for the purposes of Article 13? In this regard, the Government is invited to outline the approach of the Irish courts to proceedings raising complaints under both the Constitution and the Convention, and, in particular, to explain the circumstances where a court, having determined a constitutional complaint by finding in favour of an applicant, may consider it unnecessary to examine other complaints, including Convention complaints not analogous to the constitutional complaint determined by the court, and to approach the question of an appropriate remedy for an applicant accordingly.

7. Subject to the foregoing, if there was any violation of the applicant ’ s rights under Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14, did the award of damages by the Supreme Court and the declaration of invalidity grant the applicant an effective remedy for the purposes of Article 13?

Further questions

8. The Government is asked to outline the statutory regime providing for the State Pension (Contributory) and the circumstances under which persons are disqualified from receipt of the pension.

9. The applicant is requested to provide copies of the transcripts of the hearings in the High Court and the Supreme Court within 6 weeks of the end of the non-contentious phase.