Η προστασία των κοινωνικοασφαλιστικών παροχών κατά την Ευρωπαϊκή Σύμβαση Δικαιωμάτων του Ανθρώπου και το πρώτο πρόσθετο πρωτόκολλο
Κιουρκτσίδου, Τριανταφυλλιά Γ.
Φουντεδάκη, Πηνελόπη Ν.
Ευρωπαϊκή Σύμβαση για την Προστασία των Ανθρωπίνων Δικαιωμάτων και των Θεμελιωδών Ελευθεριών -- 1950 Κοινωνική πρόνοια -- Ευρώπη Κοινωνική ασφάλιση Convention for the Protection of Human Rights and Fundamental Freedoms -- 1950 Public welfare -- Europe Social security
Πάντειο Πανεπιστήμιο Κοινωνικών και Πολιτικών Επιστημών
The right to social security is the cornerstone of any state system of social protection. The importance of protecting social security benefits has been noticed early on by the E. Court H.R. The Court has gradually abandoned the narrow interpretation which suggested that the provisions of the E. Conv. H.R. have exclusively defensive content and assessed that certain provisions are applicable in cases concerning social security benefits. According to its jurisprudence, these provisions are: a) the article 6 par. 1 of the Convention, which has been applied in disputes about social security as a result of the Court interpreting the concept of “civil rights and obligations” in a dynamic and constructive way, b) the article 1 of the First Additional Protocol of the Convention, again by the broad interpretation of the meaning of “property” in a way that includes social security benefits, c) the article 8 of the Convention in the sense that particular social benefits are granted under the scope of ensuring effective “respect” for private and family life and d) the article 14 of the Convention which the Court’s interpretation has enabled to engage with unequal treatment as regards award of social benefits or advantages (by always examining its breach in conjunction with either of the three aforementioned provisions).The Council of Europe has adopted two conventions that explicitly guarantee the right to social security: a) the European Social Charter (and the Revised European Social Charter) and b) the European Code of Social Security (and the Revised Code of Social Security) in an effort to reach a European “minimum” protection of the right. However and despite the explicit introduction of social security benefits in both these conventional texts, the E. Conv. H.R. seems to constitute a far more effective “weapon” for the protection of social security benefits. In the case of deprivation of a social security benefit, the states enjoy a wide margin of appreciation considering the regulation of domestic social security policy. It seems that the main tool, in the Court’ s disposal, bounding the state’s wide margin of appreciation is the principle of proportionality. According to this, even when the deprivation in question is required due to very serious grounds of public interest, it may not exceed the prescribed proportionality between the sought aim and the means used. According to the Court’s assessment the article 1 of the First Additional Protocol does not provide the protection of a specific level or height for the social security cash benefits, however the reduction of the amount is not allowed when the balance between the individual interest and the public interest is disrupted according to the principle of proportionality.The Greek national Administrative Courts seem to have made some steady progress towards the alignment of their jurisprudence with the resolutions of the Court of Strasbourg in the field of social security benefits. However, the divergences are still so many and important enough to lead to the conclusion that the Greek jurisprudence, if complied to the requirements of the E. Conv. H.R., would have provided a higher level of protection in cases considering social security benefits. Despite the fact that the Court has established that the provisions that are applicable in social security disputes are those mentioned above, however, one cannot entirely rule out that an issue could arise under Article 3, if the cash benefit complained over is absolutely insufficient in its amount. The Court itself has not rule out that possibility and perhaps it will soon face the necessity to provide a definite answer to that question.
Διπλωματική εργασία - Πάντειο Πανεπιστήμιο. Γενικό Τμήμα Δικαίου, ΠΜΣ "Δίκαιο και Ευρωπαϊκή Ενοποίηση", κατεύθυνση Δημόσιο Δίκαιο, 2012