TrustHLT/LaCour huggingface dataset:
GR1 (Government): and therefore the complaint shall be deemed inadmissible and being rationa materie, incompatible with the Convention and rejected accordingly.
GR1 (Government): Before revealing the government's position, while the Chamber erred in establishing the applicability of the impugned article, the government wished to make two clarifications.
GR1 (Government): As the judgment rightly points out, there had been a change of law in 2008 that introduced the institution of rehabilitation allowances and therefore necessitated the compliance of the old rules on the disability pension system therewith.
GR1 (Government): Simultaneously, a new scheme had been introduced to assess the condition of the person concerned, which, instead of establishing the degree of loss of working capacity, as previously applied, assesses the degree of health impairment in general.
GR1 (Government): As the degrees under the two systems suit one another in compliance with the general principles binding on professionals, the 67% loss of working capacity, as assessed for the applicant in 2001 under the old system, corresponded to 50 to 79% health deterioration under the new scheme.
GR1 (Government): Therefore, had the applicant's level of health impaired remained the same, her health status should have never scored between 50 and 79% instead of 40%, and thus she should have remained eligible for the pension also under the new scheme.
GR1 (Government): As concerns the impugn degree of health deterioration itself, the government point out that it is exclusively a matter of medical expertise, the assessment criteria, all which correspond to the recommendation of the World Health Organization, and which, for these reasons, may not be questioned by any judicial forum.
GR1 (Government): The government further note that there had been two separate proceedings in front of the Hungarian authorities on which the applicant's claim is founded.
GR1 (Government): One of these proceedings concerned the original withdrawal of the applicant's disability pension back in 2010.
GR1 (Government): Although the law applicable during the time of withdrawal had been amended in 2008, it is of great importance that there is no causal relationship between the amendment of the law and the withdrawal, since the latter, irrespective of the new methodology for assessment, is a direct consequence of the actual improvement detected in the applicant's health as explained before.
GR1 (Government): At this juncture, the government warned that the Honorable Court established the lack of jurisdiction to review this part of the applicant's complaint, for instance, the 2010 withdrawal, due to the applicant's failure to file her complaint with the court in a timely fashion, that is, within six months following the final decision of the competent domestic authorities.
GR1 (Government): The other proceedings goes back to 2012, when the impugned law entered into force, reforming the whole system of disability benefits and replaced the scheme of pensions with allowances.
GR1 (Government): Although at the time of the entry into force of the new legislation, the applicant had already not been eligible for any disability pension, due to the 2010 withdrawal, she, of course, had the right to file a new request for disability allowance under the new scheme if her health condition so necessitated.
GR1 (Government): The claim constituting the basis for the impugned judgment of the chamber arises from the rejection of this new request by the Hungarian authorities.
GR1 (Government): This time, the applicant didn't have a sufficient period of social cover as required by the new rules, although due to the amelioration of her health, she did have again the requisite degree of disability.
GR1 (Government): Having made these clarifications, now the government wished to turn back to the erroneous reasoning of the chamber judgment, on which the majority established the continuity of legitimate expectations and shed light on the points why the majority failed in this respect.
GR1 (Government): Mr. President, honorable members of the court,
GR1 (Government): the first element of the flawed logic the government wished to deal with is the question whether legitimate expectation is and property interests indeed could have been generated by the legislation of Hungary in force when the applicant first became eligible to the benefits in 2001, and whether such legitimate expectations could continue existing despite the withdrawal of entitlements in 2010.
GR1 (Government): In this regard, the government find it extremely important that the court acknowledged as much that the applicant had no assertable right under domestic law to the disability allowance when she requested it in 2012, and when the interference in subject occurred.
GR1 (Government): Not having disputed the court's longstanding position according to which 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 Number 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, the ultimate question remains how the majority could still substantiate the applicability of the article in subject, thereby allowing itself to rule on the merits of the case.
GR1 (Government): According to the Chamber's analysis, the rationale seems to be that legitimate expectations could not be considered extinguished by the fact that in a new methodology of assessment, the applicant's disability was scored down to 40% in December 2009, apparently without material change in her condition.
GR1 (Government): That is, the court finds the legitimate expectations to be continuous because it argues that the entitlement of the applicant ceased to exist unlawfully, solely due to the change of the law when it was originally withdrawn back in 2010.
GR1 (Government): The government finds this argument one or mostly problematic because the court takes the issue of lawfulness, unlawfulness of the 2010 withdrawal as decided despite the fact that the government contested the applicant's assertions in this regard and claimed in a consistent way that the 2010 withdrawal is a direct result of the factual improvement of the applicant's health and has nothing to do with the altered method of assessment introduced in 2008.
GR1 (Government): Besides the lawfulness, unlawfulness of the 2010 withdrawal is exactly the issue of the first proceedings also complained about by the applicant, which, however, had been declared inadmissible by the Honorable Court since the applicant failed to submit its application in compliance with the six-month rule.
GR1 (Government): Thus, if the Honorable Court followed the Chamber's majority decision and handled the unlawfulness of the 2010 withdrawal as if it was decided, it will build the applicability of the 2012 claim through establishing legitimate expectations on this basis on an alleged but unproven unlawfulness violation stemming from the 2010 withdrawal concerning which the court itself said that it doesn't have the right to examine.
GR1 (Government): Therefore, legally, the right decision for the Grand Chamber would be not to take position in this regard and to reject the applicant's complaint since the legitimate expectation she once had seized to exist due to the 2010 withdrawal, and there is no such circumstance, for instance, the unlawfulness of this withdrawal, or at least the court is precluded from considering it, which would rectify this problem and lend continuity to the legitimate expectation.
GR1 (Government): The government warned that the Grand Chamber is not entitled to reverse the inadmissibility decision of the Chamber.
GR1 (Government): At this juncture, the government would like to briefly react on the arguments of the applicant's memorial presented in this regard and submit that saying that the applicant's property claims did have a solid domestic law basis because social rights were enshrined in the then-effective Constitution is an extremely weak argument.
GR1 (Government): This is so because our former Constitution and fundamental law in force today only lays down the basic principles of certain institutions, freedoms of rights.
GR1 (Government): However, the details are to be elaborated in other sources of law.
GR1 (Government): If we accepted this argument, it would mean that anyone who considers himself, herself disabled could claim state subsidies right away in contrast to the law containing the detailed rules and without taking into account what additional terms are prescribed for as regards the degree of health impairment, number of covered days by insurance, age, and et cetera.
GR1 (Government): As this logic is obviously flawed, the government remains to contend that the applicant's claim had no basis in domestic law when the alleged interference occurred.
GR1 (Government): Furthermore, the government wished to refer to the Asmundsson v. Iceland case,
GR1 (Government): also invoked in the applicant's memorial, and submit that the present situation may not be comparable to the invoked judgment where the court found a violation on reasonable grounds.
GR1 (Government): First, in that case, the applicant's expectation did definitely have a legal source at the domestic level at the time of the interference.
GR1 (Government): Plus, the applicant had lost his disability pension, obviously not because of a change in his health, but because of a legislative change.
GR1 (Government): As these circumstances differ in the present case, no analogy can be used.
GR1 (Government): The government respectfully note that the Asmundsson case would only be relevant if the applicant, Mrs. Bélané Nagy,
GR1 (Government): had filed her application in due time regarding the withdrawal of her allowances in 2010, because in that scenario, she also had a valid legal basis at the domestic level for legitimate expectations, which would have allowed the court to examine the lawfulness or unlawfulness of the withdrawal as it did in the cited case.
GR1 (Government): However, due to the divergent circumstances of the present case, this issue cannot be subject to scrutiny anymore, and therefore, nor can it substantiate the continuity of legitimate expectations.
GR1 (Government): As to the second element of the flawed judgment of the government, note that it might also be possible that the Honorable Chamber, to avoid the above-mentioned mistake, had not taken into account the presumed unlawfulness of the 2010 withdrawal, but established the continuous existence of legitimate expectation solely on the ground of the applicant's former eligibility.
GR1 (Government): In any way, this approach shall also be deemed mistaken.
GR1 (Government): First, the government wished to point out that it is quite clear that had the applicant been a new entrant in the pension system, meaning that had she never been eligible before, the court would not have afforded protection for her claim.
GR1 (Government): This emanates directly from the case law, namely, among others, the Richardson v. United Kingdom case,
GR1 (Government): in which the applicant, who was born in October 1955, had not been afforded protection by the court against the retroactively altered law elevating the age for retirement from 60 to 65 years.
GR1 (Government): Although the applicant of the present case differs in that she at least once had legitimate expectations on the basis of the domestic law to acquire property rights, still, to provide protection solely on this ground, independently from the will of the Member States, would entail undesired consequences.
GR1 (Government): One of these consequences would be that establishing the continuous nature of legitimate expectations of social benefits merely on the ground that the applicants once, but no longer, had been eligible for the entitlement is discriminative to those who have never been granted social state aid before.
GR1 (Government): This is so because these two groups are in a comparable situation, whose difference in treatment cannot be justified in any way, not even by saying, as the court referred to this, that those people once being eligible deserve protection because otherwise they were exposed to ex post facto legislation.
GR1 (Government): Ex post facto kind legislation is typical of the social security system, by definition due to the lengthy, continuous nature of social security relationships between the insured person and the state, and due to the fact that there are two entry points in the social security system, the starting date of the social security insurance relationship coupled with the payment of contributions, and the starting date of becoming eligible for receiving benefits.
GR1 (Government): Of course, in the most favorable scenario, the relevant law should remain unchanged between these points to ensure foreseeability.
GR1 (Government): However, due to the average length of these periods in a lifetime and to the changes of circumstances during such a long period of time, this is something that cannot be expected from the lawmaker.
GR1 (Government): We further submit that such position would place an excessive financial burden on the member states who would be forbidden to change their social benefits policies to the detriment of people who once, but not anymore, had been entitled to benefits.
GR1 (Government): The government further claim that should the court depart from its previous interpretation as to the applicability of Article 1 of Protocol Number 1, such move can easily have a chilling effect on the laws and proceedings of member states.
GR1 (Government): the third questionable issue to be considered is the majorities interpretation as concerns the relevance of contributory pension scheme as to the issue of applicability.
GR1 (Government): Finding relevant whether the applicant contributed to the pension scheme during the time when she was employed in a contradiction with the case law, as explained in Stets and others, which made it clear for the purposes of Article 1 of Protocol Number 1 that making a distinction between contributory and non-contributory pension schemes would be increasingly artificial.
GR1 (Government): Therefore, the convention provides for protection in any event, irrespective of contributions.
GR1 (Government): In any way, the government first and foremost argue that the issue of contributory or non-contributory pension system may only be examined for the purposes of applicability as a collateral precondition.
GR1 (Government): This issue can only be reached after it had been established that the applicant's legitimate expectation to acquire property rights has a basis under domestic legislation, which term cannot be ignored on the ground of the finance scheme's contributory nature.
GR1 (Government): The fourth problematic issue of the court's reasoning to be referred to is whether legitimate expectations to receive disability care entails the right not to have the eligibility criteria changed.
GR1 (Government): As already referred to this above, the ex post facto kind legislation is typical of the social security system by definition due to the lengthy, continuous nature of social security, legal relationships, and to the fact that there are two entry points in the social security system.
GR1 (Government): Therefore, the altering of legislation in the field of social security entitlements may impose individual burden on anyone irrespective of the circumstance whether he or she has formerly been eligible or not as it happened in the Richardson case.
GR1 (Government): Still, retroactive legislation in this sense may not be attributable to the state and thus cannot serve as a reason for ignoring the lack of domestic legal basis.
GR1 (Government): Besides, such amendment of law, legally speaking, may not be referred to as an ex post facto law as it had not been applied retroactively with an ex tunc effect but with an ex nunc effect for the future also with regard to the applicant.
GR1 (Government): Moreover, in the interpretation of the Hungarian Constitutional Court, which the Honorable Court also agreed with, the right to disability pension is a mixed social security and social welfare allowance aimed at temporarily replacing the lost income of active-aged persons as long as their health impairment so necessitates.
GR1 (Government): Hence, even if someone was eligible for allowances for a period of time in contrast to age pensions, conditions may change by time unless he or she belongs to the protected circle of those who are in receipt of the allowances at the time of the interference.
GR1 (Government): In order to substantiate the obligation not to change the eligibility criteria to the detriment of the applicant applied at the time when she was originally granted the benefits, the court relied on the ILO Social Security Convention and the WHO International Classification of Functioning, Disability, and Health.
GR1 (Government): Making references to other international instruments is not unknown before the court.
GR1 (Government): There are, however, a number of issues about their application in this case which are of some concern.
GR1 (Government): As the government presented these in its memorial in details, I would refrain from repeating them here.
GR1 (Government): As concern the citation of international documents such as the Universal Declaration of Human Rights, ICCPR, and so on, both by the third party and the applicant, the government respectfully submit that we couldn't agree more with them.
GR1 (Government): It is absolutely necessary for the convention's protection system to guarantee certain social rights under Article 1 of Protocol Number 1.
GR1 (Government): So what the third party decide to achieve in this regard is already guaranteed by the court.
GR1 (Government): On this basis, found honorable court a violation, for instance, in the Rasmunsen case.
GR1 (Government): However, everyone should recognize that the present case has different circumstances as a result of which under the old boundaries of protection, the applicant's claim cannot be deemed to be covered by the scope of Article 1 of Protocol Number 1.
GR1 (Government): To do so would require the court to sever the social rights protection mechanism from the regulation of member states and to broaden its jurisdiction contrary to the principle of subsidiary and state sovereignty.
GR1 (Government): As one of the closing remarks, the government wished to emphasize that when a similar case arises where there is an ex-eligibility element, but the applicant's property claim for benefits doesn't have a domestic law basis anymore, taking into consideration the issue of lawfulness, unlawfulness as concerns the continuity of legitimate expectation in itself is not a flawed idea from the court.
GR1 (Government): The problem in this particular case is, however, that the issue of lawfulness, unlawfulness of the 2010 withdrawal had and could not been decided by the court due to the failure of the applicant.
GR1 (Government): Therefore, in this particular case, it cannot be taken into account, whereas in other cases with different circumstances, it might be a valid factor to consider for the court for the purposes of establishing legitimate expectations and the applicability of Article 1 of Protocol Number 1.
GR1 (Government): The government further repeat that to follow the other way, meaning that not to consider the withdrawals relevant and to find ex-eligibility under domestic law to be the sole condition, regardless if there had been any withdrawals, would also entail serious side effects besides the ones already mentioned.
GR1 (Government): The broadening of the notion of legitimate expectation on the basis could not be regulated in a consistent way and would lead to unclear expectations for member states to meet and to jeopardize legal certainty.
GR1 (Government): As an example, the government shed light on the question whether the applicant retains legitimate expectations to receive allowance with the old term if her medical condition again so necessitates, even if her entitlement was withdrawn 10, 15, 20 years prior to her new claim.
GR1 (Government): Further, what if the eligibility had originally been established for a definite period of time and the withdrawal occurs for this reason at the time when the definite period expires?
GR1 (Government): In this scenario, does the eligibility for allowances for a definite period of time also entail lifelong legitimate expectations for allowances with the same old terms if the concerned person's health again so requires?
GR1 (Government): If so, the burden imposed on member states by this interpretation would be even much heavier.
GR1 (Government): To sum up, the government is of the view that even if supposing but not acknowledging that the alleged interference imposed an excessive individual burden on the applicant, the court cannot be allowed to conduct an examination on the merits.
GR1 (Government): The chamber reached an affirmative conclusion when examining the applicability of Article 1 of Protocol Number 1.
GR1 (Government): However, this analysis contains essential problems, errors leading to flawed conclusions which the court should have never arrived at.
GR1 (Government): Mr. President, that concludes what I wish to say at this stage.
GR1 (Government): May I thank you, Mr. President and members of the court
GR1 (Government): for listening to me so patiently and attentively.
Guido Raimondi (JudgeP): Thank you very much, Mr. Tallódi.
Guido Raimondi (JudgeP): I thank both parties for their interventions.
Guido Raimondi (JudgeP): And now I should like to invite my colleagues, judges of the Grand Chamber, to ask the questions they may have.
Guido Raimondi (JudgeP): President Sajó.
András Sajó (Judge): Thank you, Mr. President.
András Sajó (Judge): The question is addressed to the government, but the applicants are free to react to this question.
András Sajó (Judge): Government refer to the continuous legal relationship inherent in this type of welfare or pension schemes.
András Sajó (Judge): Now, I would like to ask two questions, factual questions related to this.
András Sajó (Judge): First, assuming that Act 191 of 2011 does not exist, did not enter into force, would the applicant be eligible on the basis of her medical condition as established in 2012, although she was not a recipient of benefits at that point of time?
András Sajó (Judge): So once again, the hypothetical is, without the new law under the old system, was would have been a possibility to provide her benefit.
András Sajó (Judge): The second question is somewhat similar to this one.
András Sajó (Judge): There was a change in 2014 regarding the years in service which are to be taken into consideration.
András Sajó (Judge): Those, to some extent, if I may call them, are more favorable.
András Sajó (Judge): The applicant, nevertheless, if I understand correctly, was still not eligible.
András Sajó (Judge): Now, assume that someone in her situation, that is to say, denied of the benefit in 2012, but satisfying the new conditions of 2014, would that person be eligible to be a recipient of the benefit from 2014 onwards?
András Sajó (Judge): Thank you.
Guido Raimondi (JudgeP): President Nußberger please.
Angelika Nußberger (Judge): Thank you very much, President.
Angelika Nußberger (Judge): I would have first two questions to the applicants.
Angelika Nußberger (Judge): My first question is the withdrawal of the disability pension as of 1st February 2010 was brought to the labor court, which decided on 1st April 2011.
Angelika Nußberger (Judge): And as I understand, the case was not brought further to any other Hungarian court or the Hungarian Constitutional Court nor to the European Court of Human Rights.
Angelika Nußberger (Judge): And I would just like why.
Angelika Nußberger (Judge): And my second question is on what financial means did the applicant live after the withdrawal as of 1st February 2010?
Angelika Nußberger (Judge): And if she had no financial means as a basis for existence, why was the case not argued under Article 3?