JOINT DISSENTING OPINION OF JUDGES KELLER, SPANO AND KJØLBRO

I.

1. Article 1 of Protocol No. 1 to the Convention has never, before today, been interpreted by this Court as obliging member States to provide persons with the right to social security benefits, in the form of disability pensions, independently of their having an assertable right to such a pension under domestic law. The majority have thus expanded the scope of the right to property under the Convention in a manner that is flatly inconsistent with this Court ’ s case-law and the object and purpose of Article 1 of Protocol No. 1. As the right to property under the European Convention on Human Rights is not an autonomous repository for economic and social rights not granted by the member States, we respectfully dissent.

II.

2. We will start by recapitulating the case-law of the Court in this area.

3. As explained in the Grand Chamber ’ s admissibility decision in Stec and Others v. the United Kingdom ( ( dec. ) [GC], nos. 65731/01 and 65900/01, § 50, ECHR 2005 ‑ X):

“The Court ’ s approach to Article 1 of Protocol No. 1 should reflect the reality of the way in which welfare provision is currently organised within the member States of the Council of Europe. It is clear that within those States, and within most individual States, there exists a wide range of social security benefits designed to confer entitlements which arise as of right. Benefits are funded in a large variety of ways: some are paid for by contributions to a specific fund; some depend on a claimant ’ s contribution record; many are paid for out of general taxation on the basis of a statutorily defined status ... Given the variety of funding methods, and the interlocking nature of benefits under most welfare systems, it appears increasingly artificial to hold that only benefits financed by contributions to a specific fund fall within the scope of Article 1 of Protocol No. 1. Moreover, to exclude benefits paid for out of general taxation would be to disregard the fact that many claimants under this latter type of system also contribute to its financing, through the payment of tax.”

4. As the Grand Chamber went on to observe ( ibid., § 51, emphasis added):

“In the modern, democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfilment of the conditions of eligibility – as of right. Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Article 1 of Protocol No. 1 to be applicable.”

5. However, the Grand Chamber cautiously introduced an important caveat in this regard by stating ( ibid., §§ 54-55, emphasis added) that:

“It must, nonetheless, be emphasised that the principles ... which apply generally in cases under Article 1 of Protocol No. 1, are equally relevant when it comes to welfare benefits. In particular, the Article does not create a right to acquire property . It places no restriction on the Contracting State ’ s freedom to decide whether or not to have in place any form of social security scheme , or to choose the type or amount of benefits to provide under any such scheme ... . If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements ... ”

In relation to cases concerning a complaint under Article 14, in conjunction with Article 1 of Protocol No. 1, to the effect that the applicant had been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the Grand Chamber concluded:

“the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law , to receive the benefit in question .. . Although Protocol No. 1 does not include the right to receive a social security payment of any kind , if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.”

6. Thus, it follows clearly from Stec and Others (cited above), as confirmed by the Grand Chamber in Andrejeva v. Latvia ([GC], no. 55707/00, § 77, ECHR 2009 ), and again more recently in Stummer v. Austria ([GC], no. 37452/02, § 82, ECHR 2011), that the Convention itself does not provide a right to become the owner of property, a right to receive any pension or other social security benefits, or a right to social security benefits of a particular amount. We observe, however, that Stec and Others (cited above) was limited to the question whether the welfare benefit concerned by the complaint fell within the “ambit” of Article 1 of Protocol No. 1 for the purposes of Article 14. But the Court has subsequently applied a similar test of applicability to complaints inviting it to find an independent violation of Article 1 of Protocol No. 1, thus examining whether the withdrawal of social security and welfare benefits was in conformity with the requirements of legality and proportionality under Article 1 of Protocol No. 1 (see, for example, Wieczorek v. Poland , no. 18176/05, § 67, 8 December 2009, and Moskal v. Poland , no. 10373/05, § 39, 15 September 2009). In such cases the Court has maintained its constant position that such a claim of an unjustified interference with a right in the field of welfare rights will not be considered to fall under Article 1 of Protocol No. 1 if the applicant cannot demonstrate, as an absolute threshold issue , that he or she had, at the time of the interference, an “ assertable right” under domestic law. Consequently, as most recently confirmed once again by the Court in Richardson v. the United Kingdom (( dec. ) no. 26252/08, 10 April 2012, § 17), where “the person concerned does not satisfy , or ceases to satisfy , the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1” (emphasis added); the Court referred to the cases of Bellet , Huertas and Vialatte v. France , ( dec. ) no. 40832/98, 27 April 1999, and Rasmussen v. Poland , no. 38886/05, § 71, 28 April 2009.

III.

7. It is undisputed in the present case, and the majority acknowledge as much (see paragraphs 41-42 of the judgment), that the applicant had no assertable right under domestic law to the disability pension she requested in February and August 2012, the rejection of which subsequently formed the basis of her claim that was ultimately dismissed by the Administrative and Labour Court on 20 June 2013. More than two years had thus passed since her right to a disability pension had been withdrawn and the judicial proceedings, in which the applicant challenged that withdrawal, had come to an end on 1 April 2011. Therefore, her application to the Court, as regards those proceedings, was correctly dismissed by the Court as inadmissible under Article 35 § 1 of the Convention (see paragraph 31 of the judgment).

This irrefutable legal fact should, in our view, have been the end of the matter, as the existence of an arguable claim under Article 1 of Protocol No. 1, in the field of welfare benefits, is firmly conditioned on the existence of a right to such benefits under domestic law , as we have explained in paragraphs 2-6 above. In other words, the Convention does not provide for a right to a disability pension independently of national law.

8. The majority attempt to circumvent this limitation of the scope of Article 1 of Protocol No. 1 in the field of social and welfare rights by intro ­ ducing, for the first time , the notion that an applicant, having once had a right to a disability pension under domestic law, indefinitely retains a “legitimate expectation to receive a disability pension/allowance as and when her medical condition would so necessitate” (see paragraph 47 of the judgment). Although it is clear that the applicant lost any assertable right to a disability pension in 2010, the majority thus nevertheless conclude that the “expectation of the applicant, as a contributor to the social security scheme who once satisfied the condition of eligibility, is legitimate and continuous in its legal nature” (see paragraph 48, in fine , of the judgment).

9. Firstly, we note, with respect, that the majority refrain from openly recognising that this approach entails a completely novel understanding of the concept of “legitimate expectations” under Article 1 of Protocol No. 1 never before seen in this Court ’ s case-law and certainly not in the field of social and welfare rights. The majority thus purport to “apply” the general principles of the Court ’ s case-law, as reiterated in paragraphs 35-39 of the judgment, the correct application of which could not possibly have led to the result arrived at by the majority.

10. Secondly, we would point out that the Court has previously held that the autonomous concept of “possessions” under Article 1 of Protocol No. 1 is not limited to “existing possessions”, but may also cover assets, including claims, in respect of which the applicant can argue that he or she has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment of a property right (see, among other authorities, Öneryıldız v. Turkey , no. 48939/99, § 124, ECHR 2004-XII). Thus, for there to be any possibility for an applicant to have an arguable right under Article 1 of Protocol No. 1, on the basis of a “legitimate expectation”, that expectation must be based on some normative legal source at domestic level that can reasonably confer a property right on him or her. It goes without saying that a legitimate expectation to a property right does not arise where the person in question cannot possibly be the recipient of such a right in national law in the light of its nature and legal origins. As the Grand Chamber stated unequivocally in Kopecký v. Slov ak ia ([GC], 44912/98, § 50, ECHR 2004 ‑ IX), “no legitimate expectation [under Article 1 of Protocol No. 1] can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant ’ s submissions are subsequently rejected by the national courts” (see also Anheuser-Busch Inc v. Portugal , [GC], no. 73049/01, § 65, ECHR 2007 ‑ I ).

11. Consequently, the majority ’ s reasoning raises the following crucial question: what is the normative legal source of the “continuous” legitimate expectation that the majority consider the applicant to have? It is undisputed that it is not to be found in the domestic law of Hungary. Again, the applicant had no right to the pension in question in 2012. The existence of such a right was unambiguously rejected by the national courts. Therefore, as Article 1 of Protocol No. 1 does not create a right to acquire property and, more importantly, places no restriction on the Contracting State ’ s freedom to decide whether or not to have in place any form of social security scheme, it is self-evident that in 2012, two years after she lost her domestic right to the disability pension, the applicant could not possibly have had a legitimate expectation under Article 1 of Protocol No. 1 of retaining an autonomous right that was non-existent within the confines of the right to property under the Convention. Again, as the Court stated as a general principle just over three years ago in Richardson (cited above, § 17), where the person concerned does not satisfy, or “ceases to satisfy”, the legal conditions laid down in domestic law for the grant of any particular form of benefits or pension, there is no interference with the rights under Article 1 of Protocol No. 1.

12. The majority seem to be influenced by the notion that the applicant contributed to the pension scheme in question during the time she was employed (see paragraphs 48-49 of the judgment). However, this issue is irrelevant for the purposes of the applicability of Article 1 of Protocol No. 1 in the context of the present case. In any event, the applicant has not argued, nor demon ­ strated in any way before this Court, that the contributory scheme in question was in the form of compulsory contributions, for example to a pension fund or a social insurance scheme, that created a direct link between the level of contributions and the benefits awarded. Therefore, the applicant did not, at any given moment, have an identifiable and claimable share in a particular fund for the purposes of Article 1 of Protocol No. 1, or so-called “purchased rights” within the meaning of the Convention (see, for example, Müller v. Austria , no. 5849/72, Commission decision of 1 October 1975, Decisions and Reports (DR) 3, p. 25; G v. Austria , no. 10094/82, Commission decision of 14 May 1984, DR 38, p. 84; and De Kleine Staarman v. the Netherlands , no. 10503/83, Commission decision of 16 May 1985, DR 42, p. 162).

13. Therefore, the question whether or not the applicant contributed to some extent to the public pension scheme in question, and had her contributory record taken into account when assessing whether she had a right to the disability pension in 2001, has no bearing on the issue of the applicability of Article 1 of Protocol No. 1 when, in 2012, she clearly had no right to such a pension under the new domestic scheme introduced by Act no. CXCI (see paragraph 10 of the judgment). This understanding of the applicability of the right to property under the Convention follows directly from Stec and Others (cited above), which made redundant, in principle, the distinction between contributory or non-contributory pension schemes in the member States for the purposes of Article 1 of Protocol No. 1. In both situations, the applicant must demonstrate that he or she had an assertable right under domestic law for Article 1 of Protocol No. 1 to apply. That is simply not the case for the present applicant.

IV.

14. In conclusion, the applicant might have had an arguable claim under Article 1 of Protocol No. 1 to the Convention when her disability pension was withdrawn in 2010, as finally decided by the Hungarian courts in 2011. However, the Court is not competent to decide that issue as the applicant ’ s complaint in this regard was not lodged with the Court within six months of the final decision in those proceedings (see paragraph 7 above). The majority cannot remedy this situation by inventing a substantive right to a disability pension under the Convention, where none exists, with unforeseen consequences for the social security and welfare systems of the 47 member States of the Council of Europe.

[1] R epealed by Act no. CXCI of 2011 as of 1 January 2012

[2] Convention no. 102 has been ratified by 50 countries. As regards Member States of the Council of Europe, 14 of them, not including Hungary, ratified Part IX of this instrument.