Vesna HASANI v Croatia - 20844/09 [2008] ECHR 1612 (17 September 2008)

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The European Court of Human Rights (First Section), sitting on 30 September 2010 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,

The applicant, Vesna Hasani, is a Croatian national who was born in 1966 and lives in Rijeka. She is represented before the Court by Mr M. Linić, a lawyer practising in Rijeka.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In a decision of the Croatian Health Insurance Fund, Rijeka Office (Hrvatski zavod za zdravstveno osiguranje, Područni ured Rijeka – “the Rijeka Health Insurance Office”) of 20 December 2000, the applicant's right to maternity leave and maternity allowance was established for the period from 21 September 2001 to 20 September 2003, as provided by section 21 of the Health Insurance Act.

On 24 September 2001 Parliament amended the Labour Act and the Health Insurance Act so as to establish the right to maternity leave and maternity allowance until the child's first birthday. The right to an additional period of maternity leave and allowance for a third child was withdrawn.

Accordingly, by its decision of 6 November 2001 the Rijeka Health Insurance Office withdrew the applicant's right to maternity leave and maternity allowance, as of 29 November 2001. This decision was upheld on 17 January 2002 by the Croatian Health Insurance Fund, Main Office in Zagreb (Hrvatski zavod za zdravstveno osiguranje – Direkcija, Zagreb) and by the Administrative Court (Upravni sud Repbulike Hrvatske) on 13 July 2006.

The applicant's subsequent constitutional complaint was dismissed on 17 September 2008 by the Constitutional Court (Ustavni sud Republike Hrvatske) as ill-founded.

The relevant part of the Labour Act (Zakon o radu, Official Gazette 38/1995), as in force until 26 September 2001, read:

(4) for twins as well as for the third and every further child, a woman in employment has the right to maternity leave until the child's third year.

The relevant part of the Act on Amendments of the Labour Act (Zakon o izmjenama i dopunama Zakona o radu, Official Gazette 82/2001 of 26 September 2001) reads:

'for twins, triplets, quadruplets or more children of the same age, a woman in employment has the right to maternity leave until the child's second year.'

The relevant part of the Health Insurance Act (Zakon o zdravstvenom osiguranju, Official Gazette no. 1/1997), as in force until 2001, read:

“An insured person has the right to payment of salary in connection with health insurance

(7) when he or she is temporarily incapacitated for work on account of maternity leave until the child's first or third year ...

The relevant part of the Act on Amendments of the Health Insurance Act (Zakon o izmjenama i dopunama Zakona o zdravstvenom osiguranju, Official Gazette no 82/2001) reads:

“Section 21 paragraph 1(7) of the Health Insurance Act ... is amended as follows:

'a person temporarily incapacitated for work on account of maternity leave until the child's first year ... '

The applicant complained that, by the legislative intervention of 2001, she lost the right that she had already enjoyed, as an employed mother, in respect of her third child.

She also complained under Article 6 § 1 of the Convention about the outcome of the proceedings.

The applicant complained that the withdrawal of her maternity allowance violated her property rights. This complaint is to be examined under Article 1 of Protocol No. 1 which reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

1. Whether there was a “possession” within the meaning of Article 1 of Protocol No. 1

The principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to social and welfare benefits. In particular, Article 1 of Protocol No. 1 does not confer the right to acquire property. This provision places no restriction on the Contracting State's freedom to decide whether or not to put any form of social security scheme in place, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has legislation in force providing for the payment of a welfare benefit as of right − 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 (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 54, ECHR 2005-...).

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, recognising that such individuals require a degree of certainty and security, 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 (see, among other authorities, Stec, cited above, § 51 and Moskal v. Poland, no. 10373/05, § 39, 15 September 2009).

The mere fact that a property right is subject to revocation in certain circumstances does not prevent it from being a “possession” within the meaning of Article 1 of Protocol No. 1, at least until it is revoked (Beyeler v. Italy [GC], no. 33202/96, § 105, ECHR 2000-I).

As to the present case the Court notes that by a decision of an administrative body of 20 December 2000 the applicant's right to maternity leave and maternity allowance until her daughter's third birthday, was established, under the relevant provisions of the Labour Act and Health Insurance Act, as then in effect. In doing so, the competent administrative authority agreed that the applicant had satisfied all the statutory conditions and had qualified for receiving the maternity allowance for a period of three years.

The Court finds that, in the instant case, a property right was generated by the above decision providing the applicant with an enforceable claim for maternity allowance, payable until the third birthday of her third child. Based on this decision, the applicant had the right to the maternity allowance from 21 September 2000 until 21 September 2003.

As the Court has held many times, Article 1 of Protocol No. 1, which, in substance, guarantees the right of property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers the deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see Kjartan Ásmundsson v. Iceland, no. 60669/00, § 39, ECHR 2004 IX and Goudswaard-Van der Lans v. the Netherlands (dec.), no. 75255/01, ECHR 2005 XI).

On 24 September 2001, a legislative amendment was enacted stating that working mothers no longer had the right to maternity leave and maternity allowance until the child's third year, but only for the child's first year.

Pursuant to that amendment, on 6 November 2001 the same administrative body terminated the applicant's right to maternity leave and maternity allowance from 29 November 2001.

The decision of 6 November 2001 thus interfered with the applicant's previously established right to receive maternity allowance until 21 September 2003. Thus it amounted to an interference with the applicant's right to peaceful enjoyment of her possessions (see, by way of comparison, Kjartan Ásmundsson, cited above, §40; Hoogendijk v. the Netherlands (dec.), no. 58641/00, 6 January 2005 and Goudswaard-Van der Lans, cited above).

The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that the States have the right to control the use of property by enforcing “laws” (see The former King of Greece and Others v. Greece [GC], no. 25701/94, §§ 79 and 82, ECHR 2000-XII).

In the present case, the interference complained of was “provided for by law”, as required by Article 1 of Protocol No. 1. It was regulated by the amendments to the Labour Act and the Health Insurance Act.

Article 1 of Protocol No. 1 also requires that a deprivation of property for the purposes of its second sentence be in the public interest and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised (see, among others authorities, Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§ 81-94, ECHR 2005).

As in Hoogendijk and Goudswaard-Van der Lans, both cited above, the Court shall assume that the aims pursued were social justice and the State's economic well-being, both of which are legitimate.

However, any interference with property rights under Article 1 of Protocol No. 1 must not only pursue a legitimate aim “in the public interest”; there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The requisite balance will not be found if the person or persons concerned have had to bear “an individual and excessive burden” (see, among many other authorities, Kjartan Ásmundsson, cited above, § 40, and Hoogendijk, cited above).

The requisite “fair balance” will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and Brumărescu, cited above, § 78).

The Court has already held that, in principle, the legislature is not precluded, in civil matters, from adopting new retrospective provisions to regulate rights arising under existing laws (see Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 57, ECHR 1999 VII).

As to the present case, the Court notes at the outset that the legislative amendments to the Labour Act and the Health Insurance Act did affect the applicant's right to receive a maternity allowance in the future but did not affect the applicant's payments hitherto. At the time when the applicant's maternity allowance was discontinued the applicant's child had already passed her first birthday. Thus, the legislative amendments at issue were to be applied only in the future.

Furthermore, the applicant was not entirely divested of her maternity allowance − it was only restricted to the child's first year, instead of the first three years. The right to maternity leave for a period of one year as well as to the full maternity allowance for that period, even in respect of a third child, appears satisfactory. In these circumstances, it cannot be said that the very essence of the applicant's right to maternity allowance was impaired. The Court also takes into account the fact that the applicant, as an employed woman, had the right to return to her former employment after her maternity allowance had been discontinued. Therefore, her maternity allowance was not her only possible source of income.

In assessing the issue of proportionality in the present case, the Court must also take into account the State's margin of appreciation. In this connection, it reiterates that the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws concerning social insurance benefits will commonly involve consideration of economic and social issues. The Court has already found that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one and will respect the legislature's judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see, mutatis mutandis, The former King of Greece and Others v. Greece [GC], no. 25701/94, § 87, ECHR 2000-XII and Wieczorek v. Poland, no. 18176/05, § 59, 8 December 2009).

Furthermore, a certain “threshold” of hardship must have been crossed for the Court to find a breach of the applicant's Article 1 Protocol No. 1 rights (see Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, § 234, 15 March 2007).

In the circumstances of the present case the Court considers that the impugned legislative amendments fell within the State's margin of appreciation in regulating issues of its social policy. It does not consider that a minimum threshold of hardship for the applicant was reached.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

The applicant also complained about the outcome of the administrative proceedings whereby, pursuant to the legislative amendments, her right to further maternity allowance had been discontinued. She relied on Article 6 of the Convention, the relevant part of which reads:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Court notes that the applicant complained about the outcome of the proceedings, which, unless arbitrary, the Court is unable to examine under Article 6 § 1 of the Convention. The applicant did not complain, and there is no evidence to suggest, that the domestic courts lacked impartiality or that the proceedings were otherwise unfair.

Having carefully examined the applicant's submissions in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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