CASE OF BÉLÁNÉ NAGY v. HUNGARY
Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
András Sajó;André Potocki;Angelika Nußberger;Branko Lubarda;Egidijus Kūris;Erik Møse;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Julia Laffranque;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Päivi Hirvelä;Paul Lemmens;Robert Spano;Síofra O’Leary
9. The applicant was born in 1959 and lives in Baktalórántháza. 10. Between 1 May 1975 and 14 July 1997 the applicant was employed and made the statutory contributions to the social-security scheme. Subsequently, she was in receipt of unemployment benefit from 15 September 1997 until 9 September 1998. 11. In response to a request lodged on 16 October 2001, the applicant was granted a disability pension (rokkantsági nyugdíj) later that same year on the basis of a retrospective finding that she had lost, as of 1 April 2001, 67% of her capacity to work on account of various ailments. This assessment was maintained in 2003, 2006 and 2007. 12. As of 2008 the legislation on the methodology used to assess health impairment in occupational contexts changed. In application of the new methodology, the applicant’s disability was assessed by an expert at 40% on 1 December 2009. Without envisaging any procedure for rehabilitation, the assessment panel scheduled the next check-up of her medical status for 2012. 13. The Government submitted that, under the new methodology, the applicant’s previous condition of 67% loss of working capacity would have corresponded to 54% overall health impairment. Since, however, she was found to have only 40% health impairment, her condition had to be deemed to have improved in the intervening period. The applicant submitted that the connection suggested by the Government between the scores of 67% in the old system and 54% in the new system was not based on any legal text. In her submission, her condition had not improved at all; the difference in scores was solely a consequence of changing the methodology used. 14. As a consequence of the applicant’s newly assessed 40% level of disability, on 1 February 2010 the relevant pension insurance directorate withdrew her entitlement to the disability pension. The applicant appealed against that decision. On an unspecified date, the decision was upheld by the second-instance pension insurance authority. At the relevant time the monthly amount of the applicant’s disability pension was 60,975 Hungarian forints (HUF), approximately 200 euros (EUR). On 25 March 2010 the applicant brought an action before the Nyíregyháza Labour Court, challenging the administrative decision. 15. The Nyíregyháza Labour Court heard the case, and appointed an expert with a view to obtaining an opinion as to the reasons for the difference in the scores. In an opinion of 16 February 2011, the expert submitted that the old score of 67%, as well as the new one of 40%, were correct under the respective methodologies; at any rate, the applicant’s condition had not significantly improved since 2007. 16. Observing that the applicant had accumulated 23 years and 71 days of service time, the court retained the disability score of 40% and dismissed her action on 1 April 2011. The applicant was ordered to reimburse the amounts received after 1 February 2010. The court noted that the applicant’s next medical assessment was due in 2012. It drew her attention to the possibility of making a renewed application for disability pension should her health deteriorate. 17. In 2011 the applicant requested another assessment of her disability. On 5 September 2011 the first-instance authority assessed it at 45%, scheduling the next assessment for September 2014. The second-instance authority changed this score to 50% on 13 December 2011, with a reassessment due in March 2015. Such a level would have entitled her to disability pension had rehabilitation not been possible. However, this time the assessment panel envisaged the applicant’s complex rehabilitation within a 36-month time-frame, and recommended that she be entitled to rehabilitation allowance (rehabilitációs járadék). Nevertheless, no such rehabilitation took place, and the applicant did not receive rehabilitation allowance. 18. As of 1 January 2012, a new law on disability and related benefits (Act no. CXCI of 2011) entered into force. It introduced additional eligibility criteria. In particular, instead of fulfilling a service period as required by the former legislation, the persons concerned had to have at least 1,095 days covered by social security in the five years preceding the submission of their requests. Individuals who did not meet this requirement could nevertheless qualify if they had no interruption of social cover exceeding 30 days throughout their careers, or if they were in receipt of a disability pension or rehabilitation allowance on 31 December 2011. 19. On 20 February 2012 the applicant submitted another request for disability allowance (rokkantsági ellátás). Her condition was assessed in April 2012, leading to the finding of 50% 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. 20. Between 1 July and 7 August 2012 the applicant was employed by the Mayor’s Office in Baktalórántháza. 21. On 15 August 2012 the applicant submitted a fresh request for disability pension under the new law. She underwent another assessment, during which her degree of disability was again established at 50%. Rehabilitation was not envisaged. 22. In principle, such a level of disability would have entitled the applicant to a disability allowance 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 or a rehabilitation allowance on 31 December 2011) and, moreover, she had not accumulated the requisite number of days of social-security cover or demonstrated 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 in the five preceding years, the applicant had been covered for 947 days. According to the Government, had the law not been so amended, the applicant would again have become eligible for a disability pension, since her health impairment was again assessed as exceeding the relevant threshold in 2012. 23. The applicant’s request was refused by the relevant authority of Szabolcs-Szatmár-Bereg County on 23 November 2012 and, on appeal, by the National Rehabilitation and Social Welfare Authority on 27 February 2013. On 27 March 2013 the applicant filed an action with the Nyíregyháza Administrative and Labour Court, challenging these administrative decisions. On 20 June 2013 the court dismissed her case. This judgment was not subject to appeal. 24. From 1 January 2014 the impugned legislative criteria were amended with a view to extending eligibility to those who have accumulated either 2,555 days of social-security cover over ten years or 3,650 days over fifteen years. However, the applicant does not meet these criteria either. 25. In 2011 and 2012 the applicant received a monthly housing allowance from the local municipality, in the amount of HUF 4,100 (EUR 14) in 2011 and HUF 5,400 (EUR 18) in 2012. The applicant also applied for the basic welfare allowance (rendszeres szociális segély), but her request was denied because she did not meet the statutory requirements.