Does property protection entail a right to obtain social benefits under the ECHR?

It goes without saying that a supranational court’s engagement with national social policy is a sensitive endeavour. This is all the more so when the norms this court is protecting are of a ‘classic’, rather than of a socio-economic kind. In the recent case of Béláné Nagy v. Hungary the European Court of Human Rights seemingly recognises a right to obtain social security benefits under Article 1 of Protocol No. 1 to the European Convention on Human Rights, which contains the right to protection of property. The case was decided by a three to four vote and hence might be referred to the Grand Chamber. Yet it is especially the strong and diverging conclusions of the majority and the minority on a sensitive issue like the protection of social security qua property rights issue, that make this judgment worth elaborating upon.

Béláné Nagy concerned a women who was granted a disability pension in 2001. Pursuant to a modification of the method of determining the level of disability, but apparently without any substantial change in her health, her entitlement to this pension was withdrawn in 2010. In 2012 a new law on disability allowances entered into force, introducing additional applicability criteria. Ms Béláné Nagy submitted a request for an allowance, and after her condition was reassessed it was considered to meet the requisite level for entitlement. However, as she had not been in receipt of a disability pension on 31 December 2011 and had not accumulated the requisite number of days covered by social security required by the new law, she was not granted the benefit.

The ECtHR, not having temporal jurisdiction to review the 2010 withdrawal, concludes that the refusal of the new request in 2012 amounted to an ‘excessive and disproportionate individual burden’ ...

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