Forced labour/ Prison/ Old-age pension system/ Use of international law as a guide for interpreting the European Convention for the Protection of Human Rights and Fundamental Freedoms

The applicant is an Austrian national who spent many years of his life in prison, during which he worked for lengthy periods in the prison kitchen. As a working prisoner, he was not affiliated to the old-age pension system under the General Social Security Act.

Mr Stummer’s application for an early retirement pension was dismissed by the Workers’ Pension Insurance Office, noting that he had failed to accumulate the required minimum for pension eligibility under domestic social law. He subsequently brought an action against the Pension Insurance Office, submitting that he had been working in prison for 28 years and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights. His claim was dismissed.

Mr Stummer brought the case before the ECHR and complained that the exemption of prison work from affiliation to the old-age pension system was discriminatory and deprived him of receiving pension benefits. He relied in substance on Article 14 (Prohibition of discrimination) of the European Convention on Human Rights in conjunction with Article 1 of Protocol No. 1 to the Convention (Protection of property). He further relied on Article 4 (Prohibition of slavery and forced labour) of the same Convention.

In this case, the Court not only based its reasoning on the examination of the definition of forced labour provided in the Article 2(1) of the ILO Forced Labour Convention, 1930 (No. 29), but also turned to the General Survey concerning the Forced Labour Conventions (no. 29) of the Committee of Experts on the Application of Conventions and Recommendations (CEACR)³:

        “Noting that prison work for private employers was prohibited by Article 2(2)(c) of Convention No. 29, the Committee (CEACR) found that there might be conditions in which, notwithstanding their captive circumstances, prisoners could be considered to have offered themselves voluntarily and without the menace of any penalty for work with a private employer. In this connection, apart from a formal written consent of the prisoner, conditions approximating a free labour relationship (in terms of wage levels, social security and occupational safety and health) were regarded to be the most reliable indicator of the voluntariness of labour. If such conditions were met, prison work for private enterprises was considered not to come under the definition of forced labour of Article 2(1) and consequently to fall outside the scope of Convention No. 29.”⁴

Therefore, the Court established that the applicant didn’t perform “forced or compulsory labour” contrary to article 4 of the European Convention on Human Rights.

1 ¹ ILO Forced Labour Convention, 1930 (No. 29).