CASE OF BÉLÁNÉ NAGY v. HUNGARY
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
6. The applicant was born in 1959 and lives in Baktalórántháza. 7. In 2001 the applicant’s loss of capacity to work was assessed to be 67 per cent as of 1 April 2001, and she was granted a disability pension (see paragraph 18 below). This assessment was maintained in 2003, 2006 and 2007. 8. Pursuant to a modification of the applicable methodology but apparently without any substantial change in her health, the level of the applicant’s disability was changed to 40 per cent on 1 December 2009. Without envisaging her rehabilitation, the assessment panel scheduled the next check-up of her medical status for November 2012. As a consequence of her 40 per cent level of disability, her entitlement to the disability pension was withdrawn as of 1 February 2010. The applicant challenged this decision in court, but the Nyíregyháza Labour Court dismissed her action on 1 April 2011, notwithstanding an expert opinion stating that the applicant’s condition had not improved since 2007. The applicant was obliged to reimburse the amounts received after 1 February 2010. 9. In 2011 the applicant requested another assessment of her disability. In September 2011 the first-instance authority assessed it at 45 per cent, scheduling the next assessment for September 2014. The second-instance authority changed this score to 50 per cent, with a reassessment due in March 2015. Such a level would have entitled her to disability pension, had her rehabilitation not been possible (see paragraph 19 below). However, this time the assessment envisaged the applicant’s rehabilitation in a time-frame of 36 months, during which time she was to receive rehabilitation allowance. 10. As of 1 January 2012, a new law on disability allowances (Act no. CXCI of 2011) entered into force. It introduced additional applicability criteria (see paragraph 20 below). Notably, instead of fulfilling the service period required by the former legislation, the disabled person must have at least 1,095 days covered by social security in the five years preceding the submission of his or her request. Persons who do not meet this requirement may nevertheless qualify if they had no interruption of social cover for more than 30 days throughout their career, or if they were in receipt of a disability pension on 31 December 2011. 11. In February 2012 the applicant submitted another request for disability allowance. Her condition was assessed in April 2012, leading to the finding of 50 per cent disability. On 5 June 2012 her request was dismissed because she did not have the requisite period of social cover. Rehabilitation was not envisaged. The next assessment was scheduled for April 2014. 12. On 2 August 2012 the applicant submitted a fresh request for disability pension under the new law on disability allowances and underwent another assessment in which the level of her disability was again established at 50 per cent. Rehabilitation was not envisaged. 13. In principle, such a level of disability would entitle the applicant to a disability pension under the new system. However, since her disability pension had been terminated in February 2010 (that is, she was not in receipt of a disability pension on 31 December 2011) and, moreover, she was not in a position to accumulate the requisite number of days covered by social security or to demonstrate an uninterrupted social cover, she was not eligible, under any title, for a disability allowance under the new system. Instead of the requisite 1,095 days covered by social security, the applicant had only 947. 14. Accordingly, the applicant’s disability pension request was refused both by the competent administrative authorities (on 23 November 2012 and 27 February 2013) and by the Nyíregyháza Administrative and Labour Court, on 20 June 2013. 15. As of 1 January 2014, the impugned legislative criteria have been amended with a view to extending the eligibility for disability allowance to those who have accumulated either 2,555 days covered by social security in ten years or 3,650 days in fifteen years. However, the applicant could not meet these criteria either. 16. It appears that currently the applicant lives on aid. 17. Since 2013 the Constitutional Court has examined a number of complaints attacking in essence the same new rules on disability entitlements (decision nos. 3227/2013, 3156/2013 and 3235/2014). The complainants in those procedures raised their constitutional concerns after the final and binding domestic judgments, without applying to the Kúria (Supreme Court) in review proceedings. Although these motions were eventually rejected as inadmissible for other reasons, the Constitutional Court did not consider that, for their constitutional complaints to be entertained, those complainants were required to have approached the Kúria beforehand.