Information Note on the Court’s case-law No. 101

October 2007

Stummer v. Austria (dec.) - 37452/02

Decision 11.10.2007 [Section I]

Article 14

Discrimination

Refusal to take work performed in prison into account in calculation of pension rights: admissible

This case concerns the issue of whether prisoners are entitled to be affiliated to a pension scheme in respect of work performed in prison. Under Austrian law, any prisoner who is fit to work is required to perform work assigned to him.  However, working prisoners are not considered to be employees within the meaning of section 4 of the General Social Security Act and so are not affiliated to the general social insurance system, which covers such matters as health and accident insurance and old-age pensions. In a leading decision on the subject, the Supreme Court upheld the legislature’s decision not to affiliate prisoners to the scheme on the grounds that their work was performed on the basis of a legal obligation, not under a contract of employment.

The applicant has spent much of his life in prison.  In 1999 he made an application for an early retirement pension. His application was turned down on the grounds that he had failed to make the requisite number of monthly contributions. The applicant challenged that decision arguing that a total of 28 years he had spent working in prison should have been taken into account when calculating his entitlement. However, his appeals were dismissed.

Admissible under Article 14 (in conjunction with Article 4 § 3 (a) and in conjunction with Article 1 of Protocol No. 1).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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