CONCURRING OPINION OF JUDGE De Gaetano

1. I have voted with the majority under all three heads of the operative part of the judgment. Nevertheless, I cannot share fully the reasoning embraced by the majority in connection with the first two heads.

2. The majority have found that there was no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 because the difference in treatment pursued a legitimate aim (see paragraphs 96-98 of the judgment) and was proportionate (see paragraphs 99-110). In my view, the Court need not have gone so far. Contrary to what is suggested in paragraph 95, the General Social Security Act is not intended “to provide for old age” generally, but only to make provision for, inter alia , an old-age pension for persons who are gainfully employed. By no stretch of the imagination can the applicant be considered to have been, while in prison, “gainfully employed”, the notion of gainful employment implying a measure of contribution to the national economy. In my view, therefore, the applicant, as a prisoner working in the prison kitchen or prison bakery, was simply not in a relevantly similar situation to ordinary employees (a point which is only hesitantly referred to in paragraph 93 of the judgment and then discarded). The position might have been different if he were performing work (whether within the prison confines or without) for a private person or company; or if he were engaged in producing things which the prison authorities then sell on the open market in direct competition with other producers; but that is not the case here.

3. As for the finding of no violation of Article 4, the majority decision seems to be based on the fact that “there is not sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system” (see paragraphs 132 and 131 passim ). Again, I fail to follow the reasoning. Work which is excepted under Article 4 § 3 (because it is required to be done “in the ordinary course of detention”) does not cease to be so excepted because it is paid or unpaid, or because the prisoner is or is not affiliated to a pension scheme. Nor do the European Prison Rules (of 1987 and 2006) come into the picture in the instant case. What one has to look at is the nature of the work performed by the applicant. In this case, the applicant was not made to stand by the side of a public road to break stones with a sledgehammer – he worked in the prison kitchen and prison bakery, which must surely rank as an “ordinary” contribution to the work that must necessarily be carried out in any community by its members, be that community domestic, monastic or penal. In the light of the above, I cannot share the reasoning in paragraphs 129 to 132 of the judgment.

JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS, KOVLER, GYULUMYAN, SPIELMANN, POPOVIĆ, MALINVERNI AND PARDALOS

(Translation)

We do not share the position of the majority that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 in the present case. Instead, we believe that the applicant, who spent twenty-eight years in prison and worked there for lengthy periods, was discriminated against in that he was not affiliated to the old-age pension system on account of his status as a prisoner.

1. First of all, we would emphasise that we fully agree with the majority that the applicant, as a working prisoner, was in a relevantly similar situation to ordinary employees as regards the need for old-age insurance cover (see paragraph 95 of the judgment). Here, the judgment explicitly, and rightly, rejects the Government’s contention that working prisoners were not in a similar situation to other employees, notably because of the difference in the nature and aims of prison work, which was mandatory and pursued the aims of social reintegration and rehabilitation.

2. Where we depart from the majority is in the assessment of whether the difference in treatment to which the applicant was subjected in respect of affiliation to the old-age pension system under the General Social Security Act was justified in terms of the requirements of the Convention. In our view, it was not.

3. With regard, firstly, to the legitimate aim pursued by the difference in treatment, the judgment refers to “preserving the economic efficiency and overall consistency of the old-age pension system by excluding from benefits persons who have not made meaningful contributions” (see paragraph 98 of the judgment). Although it is of course reasonable to take economic realities into account, it must nevertheless be acknowledged that there has been a gradual trend in the Court’s recent case-law towards attaching considerable importance to them, sometimes to the detriment of fundamental rights (see N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008 ; Burden v. the United Kingdom [GC], no. 13378/05, ECHR 2008; and Carson and Others v. the United Kingdom [GC], no. 42184/05, ECHR 2010). Furthermore, strictly speaking, the “economic well-being of the country” found in Article 8 of the Convention does not appear as such in Article 1 of Protocol No. 1, which refers more broadly to the public interest.

4. Next, with regard to the question of proportionality , the judgment begins with an emphatic reminder of the Court’s well-established case-law to the effect that “prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. It is inconceivable that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction” (see paragraph 99 of the judgment). Nevertheless, in applying this approach to the present case, the majority head off in a different direction.

5. The judgment relies to a large extent on the margin of appreciation which the State must be afforded, one of the relevant factors in which may be the existence or non-existence of common ground between the legal systems of the Contracting States (see paragraph 104 of the judgment). We would observe that there is nowadays an evolving trend in the Council of Europe member States towards the affiliation of working prisoners to national social security systems. The 2006 European Prison Rules reflect the position of all the Council of Europe member States in terms of policy [1] . On the basis of Rules 64 and 65 of the 1987 European Prison Rules, they lay down the principle of normalisation of detention conditions as the basis of policy on execution of sentences [2] . They explicitly recommend that “[a]s far as possible, prisoners who work [should] be included in national social security systems” (Rule 26.17). This trend is gradually reducing the margin of appreciation which States may enjoy in this area. While they still retain a choice in respect of the policies to be implemented and the timing of any legislative changes (see Petrovic v. Austria , 27 March 1998, §§ 36-42, Reports of Judgments and Decisions 1998 ‑ II, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 63-65, ECHR 2006 ‑ VI), they cannot disregard such a trend altogether.

6. We are struck by the lack of flexibility in the system applied in the applicant’s case. Section 4(2) of the General Social Security Act, as interpreted by the domestic courts, provides for the automatic exclusion of working prisoners from the compulsory old-age pension system. The applicant thus worked for twenty-eight years as a prisoner without ever having been affiliated to the system. Besides the consideration that working prisoners are in a different situation from ordinary employees in that they do not perform work on the basis of an employment contract but by virtue of a statutory obligation, the exclusion is mainly based on the premise that prisoners do not have the necessary means to pay contributions to the old-age pension system. However, this situation is a result of the State’s deliberate policy choice to withhold 75% of a working prisoner’s remuneration as a maintenance contribution, a percentage which is particularly high [3] . Prisoners are thus in a sense “condemned” to be unable to pay sufficient contributions.

7. While deducting a maintenance contribution from a prisoner’s remuneration is not in itself at variance with the Convention (see Puzinas v. Lithuania (dec.), no. 63767/00, 13 December 2005), the high percentage of this contribution in the Austrian system leaves virtually no room for contributions to the social security system, apart from a small percentage for the payment of contributions to the unemployment insurance scheme. In our view, there is a lack of balance between the possible public interest in ensuring that prisoners contribute towards the costs incurred by the community as a result of their imprisonment and the individual prisoner’s interest in providing for old age. Nowadays, because of the long-term sentences being imposed in many countries, the presence of an older prison population is a new sociological reality which will necessarily raise the question of old-age pensions for such prisoners at the time of their release. The applicant’s case is a good example. He has spent twenty-eight years of his life in prison and was released at the age of sixty-six.

8. Admittedly, the applicant was not left without any social cover. Since the 1993 amendment to the Unemployment Insurance Act, working prisoners have been affiliated to the unemployment insurance scheme, which the legislature considered at that time to be the most effective instrument for encouraging prisoners’ reintegration after release. However, as the Government acknowledged, the Austrian legislature itself regarded this amendment as only a first step towards full integration of working prisoners into the social security system (see paragraph 78 of the judgment). Yet despite that intention, the issue of working prisoners’ affiliation to the old-age pension system has not been discussed subsequently.

9. From a judicial perspective, the applicant brought his case before the courts in 2001 and the Supreme Court gave judgment in 2002. In finding that the non-affiliation of working prisoners to the old-age pension system was not discriminatory, the domestic courts limited themselves to referring to the Supreme Court’s leading case on the issue, a judgment delivered in 1990 – more than twenty years ago now. They did not consider it necessary to re-examine whether the non-affiliation of working prisoners was still proportionate to any legitimate aims pursued, nor did they make an assessment of the applicant’s particular circumstances.

10. Regarding the applicant’s current situation, he continues to receive emergency relief payments (to which he is entitled on account of having been covered by the Unemployment Insurance Act as a working prisoner), supplemented by social assistance for persons who are otherwise unable to provide for their basic needs. However, in our view, neither the emergency relief payments nor the social assistance can be compared to an old-age pension granted on the basis of the number of years worked and the contributions paid. The former constitute assistance, whereas the latter is a right. The difference is significant in terms of respect for human dignity . Social security forms an integral part of human dignity. In addition, it is now acknowledged in modern penology that social rehabilitation implies the development of personal responsibility. Lastly, as regards access to social services, the European Committee of Social Rights has highlighted former prisoners as a vulnerable group.

11. In these circumstances, we consider that the non-affiliation of working prisoners to the old-age pension system creates a distinction between prisoners and ordinary employees, which risks producing – and in the applicant’s case actually produces – a long-term effect going well beyond the legitimate requirements of serving a particular prison term. Some writers have had no hesitation in referring to this as double punishment [4] . Such a situation sits ill with the idea that prisoners should not suffer any restriction of their rights beyond the necessary and inevitable consequences of imprisonment. Moreover, it does not serve the aim of rehabilitation, on which, by the Government’s own assertion, the system of prison work is based.

12. The Grand Chamber’s judgment does, however, leave an opening for the future. The Grand Chamber takes note of the context of changing standards and finds that while, as matters currently stand, the respondent State has not exceeded the margin of appreciation afforded to it in this area by not affiliating working prisoners to the old-age pension system, it is called upon to keep the situation under review (see paragraph 110 of the judgment). Prisoners, it must be emphasised, have been recognised by the Court itself as persons in a vulnerable situation (see, for example, Alg ür v. Turkey , no. 32574/96, § 44, 22 October 2002; Mikadze v. Russia , no. 52697/99, § 109, 7 June 2007; Renolde v. France , no. 5608/05, § 93, ECHR 2008; and Aliev v. Georgia , no. 522/04, § 97, 13 January 2009). Today, the right to an old-age pension forms part of the social pact between citizens and the State.