CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I have voted for finding a violation of the Convention in the instant case; however, I respectfully disagree with the reasoning of the judgment. Equally, I subscribe to the way in which the minority opinion of eight judges has presented the existing case-law establishing the general principles pertaining to the protection of possessions under Article 1 of Protocol No. 1. Nonetheless, in the instant case I apply these general principles in a different manner to my colleagues in the minority. Moreover, the eight colleagues of the minority consider that those principles should be applied as they stand. In my view the established principles require certain additions and clarifications, which I shall attempt to expose below. In any event, the reasoning is founded upon principles firmly rejected by nine judges, which diminishes the authority of the judgment and its practical import.

2. The Court’s existing case-law on legitimate expectations is difficult to understand, due to lack of precision and inconsistencies (compare, for instance, the critical assessment made by M. Sigron, Legitimate Expectations under Article 1 of Protocol No. 1 to the European Convention on Human Rights , Cambridge-Antwerp-Portland: Intersentia 2014, pp. 96 ‑ 97). I regret to say that the general principles as developed in the present judgment’s reasoning serve only to petrify the current state of confusion. In particular, the notion of legitimate expectations on which the reasoning is based appears vague and obscure, and its relationship with the notions of right, claim and legally protected interest is not clear.

3. Without entering into details, I should like to outline very briefly how I perceive the relationship between two fundamental concepts: subjective rights and legitimate expectations.

A subjective right, by definition, entitles the right-holder to certain behaviour on the part of the right-obligor in his favour. Generally speaking, subjective rights are enforceable claims. Not only can the right-holder expect certain (future) conduct from the right-obligor, but he can also demand it and, if necessary, resort to remedies triggering an enforcement procedure. It should be noted in this context that private-law claims stemming from contracts or torts are typically subjective rights, even if the date that they are due is still in the future.

A legitimate expectation is a legal position of a legal subject who can expect, in the specific factual and legal circumstances, certain conduct on the part of a State organ or another legal subject. The notion of legitimate expectation is useful in describing legal positions which do not have the status of subjective rights in that they enjoy weaker protection. If one can claim something against a legal subject, there is no need to say that one can expect that thing from the given legal subject. Using the term “legitimate expectation” in respect of enforceable claims creates confusion.

The notion of legitimate expectations is particularly useful in social-security law. In this branch of law the acquisition of subjective rights is a long process, which begins with entry into the system in respect of certain benefits and ends with the fulfilment of all the criteria established by law. A person fulfilling only certain criteria may have an expectation of acquiring the subjective right as soon as all the criteria are fulfilled. The closer to the fulfilment of all the criteria, the stronger his expectation.

A subjective right presupposes a precise definition of: (i) the right-holder; (ii) the right-obligor and (iii) his obligations, as well as (iv) the precise conditions in which those obligations must be fulfilled. A legitimate expectation corresponds to a situation in which the future obligations correlated with the expectation are defined with less precision or are subject to some uncertainties concerning their precise scope or nature. Drawing a clear demarcation line between subjective rights and legitimate expectations may be problematic in certain cases. In particular, deciding whether a legal obligation imposed on one legal subject in favour of another legal subject is precise enough to qualify as a subjective right of the latter, or whether it should be considered as not fulfilling this criterion and therefore justifying qualification as a legitimate expectation, may be open to dispute between reasonable lawyers. In any event, the protection of legitimate expectations extends the protection of the individual beyond the scope of the protection of his subjective rights.

At the same time, it is important to note that subjective rights may differ as to the strength of their protection. Similarly, the level of the right ‑ holders’ subjective conviction – based on legislation and official declarations – that their rights should and will be upheld may vary. Both elements – subjective convictions and objective protection – interact. On the one hand, the strength of the assurances given to the right-holders should not be ignored when assessing the required level of protection of a right. On the other hand, the strength of the actual protection also determines the level of right-holders’ subjective convictions and expectations.

4. The judgment (in paragraph 79) explains the gist of the approach underlying its conclusions in the following way:

“Notwithstanding the diversity of the expressions in the case-law referring to the requirement of a domestic legal basis generating a proprietary interest, their general tenor can be summarised as follows: for the recognition of a possession consisting in a legitimate expectation, the applicant must have an assertable right which, applying the principle enounced in paragraph 52 of Kopecký , may not fall short of a sufficiently established, substantive proprietary interest under the national law.”

It is difficult to understand this statement. Firstly, it is not clear whether the expectation and the assertable right referred to protect against the same or different State organs (see § 6 below). Secondly, if a legal subject has an assertable right protecting him against a State organ, then what is the added value of qualifying his legal position as a legitimate expectation vis-à-vis this same organ? Thirdly, if a legal subject has an assertable right vis-à-vis a State organ, how could this legal position fall short of a sufficiently established, substantive proprietary interest under the national law? An assertable right exists only if there is a sufficiently established, substantive interest under the national law. On the other hand, not every legal interest is protected by a subjective right.

Moreover, the subsequent reasoning pertaining to the specific legal position of the applicant in the instant case (see paragraphs 95 to 111) does not refer to the concepts set out in paragraph 79. It gives the impression that her position is considered not as an assertable right but as a legitimate expectation enjoying weaker protection than a subjective right.

In my view, the scope of the notion of possession in Article 1 of Protocol No. 1 is limited to subjective rights (with pecuniary value) and does not encompass legitimate expectations which are not based on subjective rights (see § 4 of the dissenting opinion by the eight minority judges).

5. The category of possession within the meaning of Article 1 of Protocol No. 1 is extremely diverse and encompasses subjective rights of very different natures. It includes, inter alia , ownership of movable and immovable goods, other real rights protected erga omnes , pecuniary intellectual property rights and other pecuniary rights in immaterial goods, private-law assets ( créances ) stemming from tort or contract with other persons as well as acquired rights to social-security benefits. Their strength and the degree of protection should necessarily vary, depending on their nature and the weight of the values on which they are founded.

6. One of the main difficulties in applying Article 1 of Protocol No. 1 is related to the articulation between domestic law and the Convention. In order to establish whether there is a possession one must analyse the domestic law (see paragraph 89 of the judgment, and § 10 of the dissenting opinion). A possession is a subjective right, defined by domestic law. It exists only if it exists in domestic law and it exists only to the extent that it is recognised in domestic law. The domestic law defines, in particular, the right-holder, the right-obligors, the content of the right and the scope of the obligors’ obligations correlated with this right, as well as the tools for and degree of the protection. The importance of this last element should not be underestimated, as it co-defines, together with other elements, the content of the right itself. A right exists as a right with a certain strength. Some rights are unconditional and enjoy strong protection, including protection vis-à-vis the legislator, whereas some rights are precarious and enjoy weak protection, especially vis-à-vis the legislator.

It is undisputed that, according to the Court’s established case-law, the Convention does not confer rights to specific social-security benefits (see paragraph 82 of the judgment and § 13 of the dissenting opinion). More generally, the Convention does not create specific possessions. In principle, the legislator is free to decide whether or not a specific interest will be protected by subjective rights (possessions in the meaning of Article 1 of Protocol No. 1). If the legislator is free to create possessions, then it is logical to recognise that it is also free to determine the strength of a right’s protection. If the legislator was free not to grant a specific right at all, then is there any reason that say that it could not grant a precarious and conditional right? If the Convention does not require that a specific right be granted, does it prohibit granting this right as a weak right? Moreover, there are often serious grounds in a State governed by the rule by law to grant only weak rights enjoying limited protection, for the sake of protecting other fundamental values.

In principle, the Convention protects possessions as defined in domestic law. A possession is protected if it exists and to the extent that it exists. In other words, the Convention does not convert no-rights into rights. Similarly, it would be logical to conclude that it should not convert week rights into strong rights, non-enforceable claims into enforceable claims and toxic assets into healthy ones.

On the other hand, if possessions are protected under the Convention only to extent to which they exist and enjoy protection under domestic law, then the practical effect of Article 1 of Protocol No. 1 would be extremely reduced. The role of the Court would be to check only whether the existing domestic law has been correctly applied. There may be special circumstances when a weak possession under domestic law may require stronger protection under the Convention. Such a transformation of a weak right into a stronger one by virtue of the Convention should always be explicitly addressed and justified by the Court.

The transformation of a weak right into a stronger one may be justified, in particular if the right recognised in domestic law can be limited or withdrawn, provided that the principle of proportionality is observed. The application of this principle requires a balancing of values. The weight of different values under the national Constitution and the Convention may differ, and therefore the result of the balancing act may be different. The role of the Court is to ensure that in balancing values the High Contracting Parties did not exceed their margin of appreciation, for instance by excessively diminishing the weight of the values protected by the Convention.

The matter is even more complicated in that domestic law has a hierarchical structure. One and the same right may enjoy strong protection against the administrative authorities and weak protection against the legislator. Moreover, the legal position of a legal subject may combine a subjective right vis-à-vis the administrative authorities with a legitimate expectation vis-à-vis the legislator. The most complicated legal problems stem from the disparity of protection vis-à-vis the administration and the legislator.

If the interference with a subjective right is of a legislative nature, then the question arises whether the right is protected against the legislator. If there is clearly no protection of a legal subject’s right vis-à-vis the legislator in the domestic legal system, then the Court should not convert such a right, protected only vis-à-vis the administrative authorities and the judicial power, into a right offering protection also vis-à-vis the legislative power, unless there are special reasons for doing so and especially if the weight of the conflicting values under the Convention differs from the weight of the values under the national Constitution.

7. Subjective rights to social-security benefits are possessions within the meaning of Article 1 of Protocol No. 1. A complete revocation or a limitation of such a subjective right amounts to interference with possessions, and must fulfil the criteria set forth in the Convention. Such an interference should have a legal basis in domestic law and observe the principle of proportionality.

It is important to stress that the point of departure for the identification of the possession and of the interference is the legislation in force prior to the interference. What matters is whether a legal subject had a subjective right (or an enforceable claim) before the date of the interference.

The degree of protection of social-security rights under Article 1 of Protocol No. 1 should depend on several factors. As rightly stated in the separate opinion by eight judges, benefits directly linked to the level of contributions require stronger protection than other rights. This, however, is not the only parameter to be taken into account.

The judgment’s reasoning attaches importance to the contributory nature of the benefit in question, implicitly conveying the idea that contributory benefits require stronger protection than non-contributory ones (see paragraphs 99 and 105). I subscribe to this approach, which clearly departs from the view expressed in Stec and Others v. the United Kingdom ([GC], nos. 65731/01 and 65900/01, ECHR 2006 ‑ VI). Financial participation in the form of the contributions paid by insured persons for the purpose of financing social-security benefits is indeed an important argument pleading in favour of protection of the benefits financed from these contributions. It creates a strong moral basis for a reciprocal (but not necessarily strictly synallagmatic) obligation. However, the required level of protection of contributive rights that are not directly linked to the level of contributions will be lower than in the case of benefits directly linked to the level of contributions.

In my view, moreover, benefits which replace salaries, such as retirement pensions and invalidity pensions, require much stronger protection than benefits which complement other sources of revenue.

It is also important to take into account whether the benefits are granted for a specific period, for a period defined by the fulfilment of certain criteria or for an indefinite period. If legislation provides for a more precise time ‑ frame for the payment of benefits, this factor is an argument in favour of stronger protection.

8. In the instant case, there is no need to resort to the concept of legitimate expectation in order to conceptualise the applicant’s legal position. The applicant held a subjective right to an invalidity pension prior to 1 February 2010. This right was confirmed by an administrative act and the applicant in fact received the pension in question until the end of January 2010. She also fulfilled the criteria to receive either a disability pension or a rehabilitation allowance at some point in the second semester of 2011 and this fact was subsequently confirmed by the decision of 13 December 2011 (see paragraph 17 of the judgment). She had a subjective right (an enforceable claim) to receive one of these two benefits, even if this right was not confirmed by an administrative act. This right also constituted a possession within the meaning of Article 1 of Protocol No. 1. This is where the essential difference lies between me and my colleagues in the minority.

Had her right to one of these two benefits been respected on 31 December 2011, she would also have been entitled to these two benefits after 1 January 2012 under the legislation which entered into force at that moment. In her specific circumstances, the actual implementation of her subjective right before 1 January 2012 would have given her the status of a subjective right-holder after that date.

9. An analysis of the Hungarian legal system leads to the conclusion that there are reasons pleading in favour of strong protection of the applicant’s right, but there are also serious reasons pleading against such protection.

On one hand, the benefits in question were contributive and were in principle designed to replace other sources of revenue. Furthermore, the legislation in force before 1 February 2010 and the legislation in force at the end of 2011 provided for a specific time-frame for the implementation of those rights. They were to be granted and implemented as long as the health of the right-holder did not improve. All those reasons plead in favour of strong protection of the benefits in question against State interference, be that legislative, administrative or judicial in form.

Moreover, the Constitution of Hungary in force until 31 December 2011 guaranteed the right to social security. It is true that a new paragraph 3 was introduced to Article 70E of the Constitution by the Act of 6 June 2011 which weakened the protection of pensions granted to persons below the retirement age. It is important to stress, however, that under that paragraph disability pensions could be reduced or terminated if the persons concerned were able to work. The Constitution did not allow the complete withdrawal of disability pensions granted to persons unable to work. Therefore, it cannot be said that – under the letter of the Hungarian Constitution – the subjective right acquired by the applicant was devoid of constitutional protection vis-à-vis parliament. Furthermore, the actual degree of protection of disability pensions under the Hungarian Constitution depends on the balancing of conflicting constitutional values.

At the same time, the scope of the constitutional protection as determined by the case-law of the Constitutional Court was very narrow (see paragraphs 32 and 33 of the reasoning of the judgment). The 2011 Fundamental Law (the new Constitution) which entered into force on 1 January 2012 further reduced the degree of protection for social rights. These factors are a strong argument against stronger protection of the possession in question vis-à-vis legislative interference.

In my view, the decisive factor in the instant case is the nature of the benefit. It is designed to replace employment income for persons who are unable to work. This fact justifies scrutiny of the strength of the right-holder’s protection against legislative change.

10. The actual interference with the applicant’s subjective rights took place in several stages and had several dimensions. Firstly, the applicant was deprived of her disability pension as of 1 February 2010, due to a new method for establishing the level of disability set out in infra-legislative (infra-statutory) provisions. Secondly, she could receive neither the disability pension nor the rehabilitation allowance to which she was entitled in the second half of 2011, apparently due to the inaction of the administrative authorities. Thirdly, she was definitely deprived of the right to either of these two allowances as of 1 January 2012, due to a change in legislation decided by the national parliament.

The Chamber judgment stated that the Court is prevented from examining the procedure having led to the judgment of 1 April 2011 because the application was filed more than 6 months later (see paragraph 31 of the Chamber judgment). This is somewhat ambiguous, but does not necessarily mean that the Court is prevented from examining the legal situation of the applicant after 31 January 2010.

The Grand Chamber declared that it will examine whether the outcome of the proceedings ending with the judgment of 20 June 2013 is compatible with the Convention (see paragraphs 91 and 92). What matters is not so much the outcome as such of those proceedings but the legal position of the applicant as determined by domestic law and confirmed by that domestic judgment.

11. The question arises whether the first interference referred to above (in § 8) is a one-off interference or amounts to a continuous situation. The answer to this question may be disputed. For my colleagues of the minority, it was a one-off violation. Given that the legislation in force on 1 February 2010 did set out a time-frame for the implementation of the right in question (until the individual’s health improves), I would be inclined to see the applicant’s legal position after 1 February 2010 as a continuous interference with her subjective right, acquired prior to that date. But even if we consider this first interference as a one-off interference for the purpose of the calculation of the six-month period, there is certainly a new subjective right at stake in the second semester of 2011 and a new – twofold – interference (described above) with this subjective right. This interference came first from the administrative authorities, and only later from the legislator.

In the instant case the interference with the applicant’s right was initially administrative in nature. Nonetheless, it is not possible to avoid an assessment of the legislative interference with effect from 1 January 2012. However, as stated above, such an assessment is not illegitimate, given the nature of the benefit in question. Therefore, it is justified to scrutinise the proportionality of the interference (both administrative and legislative) with the applicant’s possession. In my view, this interference was not proportionate and in this respect I agree with the reasoning of the judgment.

Admittedly, we end up with the transformation of a right with limited protection against the legislator under domestic law into a right with somewhat stronger protection against the legislator. However, the specific nature of the right at stake justifies such an approach.

12. The first and foremost condition for the legitimacy of a court is the precision, clarity and methodological correctness of its reasoning. Only well-argued judgments can win the respect of citizens. The European Court of Human Rights should consolidate the rule of law by setting the highest possible standards in this respect. It is true that the Convention sets out the minimum European standard for substantive human-rights protection, but this ought not to prevent the Court from seeking and promoting excellence in the art of legal argument.

In this respect, I should like to raise two questions. Firstly, I note that the judgment does not try to consider and discuss possible counter-arguments; in particular, it ignores the arguments put forward by the minority. Such a choice of argumentative strategy is problematic. I think that the argumentation of the minority deserves thorough consideration and serious discussion.

Secondly, in many European States the domestic courts follow extremely high standards in the reasoning of judicial decisions. In particular, they pay the utmost attention to the precision of the conceptual apparatus and clearly state the applicable rules of interpretation. The quality of reasoning in the instant case does not reach the level of diligence attained in the most advanced States. Seen from this perspective, for many European lawyers, the way in which the judgment is reasoned may appear as a step back in the development of the standards of a democratic State ruled by law. Such a situation not only makes it difficult for the respondent States to implement the Convention and affects the authority of the Court, but also has a detrimental impact on European legal culture.