EHRM, 07-07-2011, nr. 37452/02

The General Social Security Act encompasses health and accident insurance and old-age pension.

Section 4 of the General Social Security Act regulates compulsory affiliation to the social security system. Pursuant to section 4(1)(1), employees are affiliated to the health and accident insurance scheme and to the old-age pension scheme. Section 4(2) defines an employee as any person working in consideration of remuneration in a relationship of personal and economic dependency. A further condition for compulsory affiliation is that the salary exceeds the marginal earnings threshold (Geringfügigkeits-grenze). At current levels this amount is set at EUR 366.33 per month (section 5(2)).

For an employee affiliated to the social security system, compulsory contributions have to be paid in part by the employer and in part by the employee.

Section 17(1) provides that persons who are no longer covered by compulsory affiliation to the social security system may continue to pay voluntary contributions (freiwillige Weiterversicherung) if they have accumulated at least twelve insurance months out of the previous twenty-four months within the system or at least three insurance months during each of the previous five years. Contributions can be reduced within certain limits if the economic circumstances of the person concerned justify such a reduction.

Entitlement to an old-age pension arises when a person who has reached pensionable age has accumulated a sufficient number of insurance months, namely a minimum of 180 months or, in the case of an early retirement pension, 240 months. When calculating the number of insurance months, certain periods during which no gainful activity has been pursued, and thus no contributions were made, are nevertheless taken into account as substitute periods (Ersatzzeiten), for instance periods of child-raising, military service or unemployment.

The amount of an old-age pension depends mainly on the number of insurance months and the level of contributions paid. If the pension thus calculated does not reach a certain minimum level, which at current rates is EUR 783.99 per month for a single person and EUR 1,175.45 for a couple, a supplementary payment (Ausgleichszulage) is added in order to reach the minimum level.

During a prison term exceeding one month, entitlements to health, accident and pension insurance are suspended (section 78 of the General Social Security Act). The livelihood of prisoners is to be provided by the prison authorities. Likewise, their health care and care in case of an accident have to be provided for by the State in accordance with the Execution of Sentences Act (see below paragraphs 41 and 44).

As a matter of principle, working prisoners are not affiliated to the general social insurance system. According to the Supreme Court's case-law, prisoners performing work are not treated as employees within the meaning of section 4(2) of the General Social Security Act.

In a judgment of 27 February 1990 (10 Obs 66/90) the Supreme Court examined an appeal by a former prisoner against a decision refusing him an invalidity pension on the ground that he had not accumulated the requisite number of insurance months. The Supreme Court ruled as follows:

In a judgment of 16 March 1999 (10 ObS 52/99s) the Supreme Court confirmed its previous judgment.

For the purpose of calculating entitlement to an old-age pension, periods spent in prison are only taken into consideration in specific circumstances defined in the General Social Security Act. For instance, periods spent in prison for which compensation has been granted under the Compensation (Criminal Proceedings) Act (Strafrechtliches Entschädigungsgesetz) are counted as substitute periods.

The Forced Labour Convention (No. 29) was adopted on 28 June 1930 by the General Conference of the International Labour Organisation (ILO) and entered into force on 1 May 1932. Article 2, in so far as relevant in the present context, provides as follows:

The International Labour Conference (the annual meeting of member States of the ILO) at its 96^th session, 2007, carried out a General Survey concerning the Forced Labour Convention (no. 29) based on a report of the Committee of Experts on the Application of Conventions and Recommendations (‘the Committee’).

The report dealt inter alia with the question of prison work for private enterprises. Noting that prison work for private employers was prohibited by Article 2 (2)(c) of Convention no. 29, the Committee 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 the Convention no. 29 (§§ 59–60 and §§ 114–116).

The ICCPR was adopted on 16 December 1966 by United Nations General Assembly Resolution 2200A (XXI) and entered into force on 23 March 1976. Article 8, in so far as material, reads as follows:

The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates.

The European Social Charter, a Council of Europe treaty which was adopted in 1961 and revised in 1996, is also of some relevance in the present context. Article 1, dealing with the right to work, provides:

The European Committee of Social Rights, the body responsible for monitoring States Parties' compliance with the European Social Charter, has interpreted Article 1 § 2 to mean that prison work must be strictly regulated, in terms of pay, working hours and social security, particularly if prisoners are working for private firms. Prisoners may only be employed by private enterprises with their consent and in conditions as similar as possible to those normally associated with a private employment relationship (see Digest of the Case Law of the European Committee of Social Rights, 1 September 2008, p. 23).

The applicant referred to the principle that deprivation of liberty was a punishment in itself and that measures concerning a prisoner should not aggravate the suffering inherent in imprisonment. He argued that the exclusion of working prisoners from affiliation to the old-age pension system was contrary to that principle as it produced long-term effects going beyond the serving of the prison term.

Furthermore, he asserted that working prisoners were in the same situation as other employees as regards the need to provide for their old age through social insurance. The domestic courts' interpretation of section 4(2) of the General Social Security Act, namely that a distinction had to be drawn between voluntary work on the basis of a regular employment contract and prisoners' work performed in fulfilment of their statutory obligation to work, was not a convincing reason for their exclusion from affiliation to the old-age pension system.

The two situations were not fundamentally different in the applicant's submission. In reality, the vast majority of people at liberty were also obliged to work, if not by law, by the necessity of earning a livelihood. Work, whether performed in or outside the prison context, always served a variety of purposes going beyond the financial aspect of remuneration. The types of work performed by prisoners were not fundamentally different from the types of work performed by other persons. In sum, the exclusion of working prisoners from affiliation to the old-age pension system was not based on any factual difference and therefore required justification.

In the applicant's view, no such justification existed. Firstly, the exclusion of working prisoners from affiliation to the old-age pension system did not serve any legitimate aim. In so far as the Government had referred to the strained financial situation of the social security system, mere budgetary considerations could not suffice to exclude a vulnerable group from social protection.

Secondly, the applicant maintained that the Government had not shown objective and reasonable grounds for the difference in treatment. In particular, he contested the Government's argument that working prisoners could not pay meaningful contributions and that counting periods of prison work as insurance periods would therefore grant prisoners an unjustified privilege as compared to regular employees who had to pay full social security contributions. Since, pursuant to section 51 of the Execution of Sentences Act, the State received the proceeds from the work of prisoners, it could reasonably be expected to pay social security contributions. The Government's further argument as to whether or not periods of detention could justifiably be regarded as substitute periods was therefore of no relevance.

In respect of the possibility for prisoners to make voluntary contributions to the pension scheme under section 17 of the General Social Security Act, the applicant argued that many prisoners did not fulfil the requirement of having accumulated a sufficient number of insurance months in previous periods. Moreover, the costs of voluntary insurance normally exceeded the limited financial resources of prisoners, as 75% of their modest remuneration for work was used as a contribution to the costs of serving their sentence, pursuant to section 32 of the Execution of Sentences Act.

The Government argued first and foremost that the non-affiliation of working prisoners to the old-age pension system was not discriminatory within the meaning of Article 14 of the Convention, as working prisoners were not in an analogous situation to regular employees.

They gave a detailed description of the organisation of prison work in Austria, underlining that prison work served the primary purpose of reintegration and resocialisation. They noted that the relevant Council of Europe standards, as well as the latest report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in respect of Austria, acknowledged the importance of work for providing prisoners with an opportunity to preserve or improve their professional qualifications, giving them a purposeful activity and a structured daily routine to make their prison term more bearable and preparing them to take up regular employment after release.

Prisoners were obliged to work pursuant to section 44(1) of the Execution of Sentences Act and prison authorities were under an obligation to provide them with suitable work in accordance with section 45(1) of that Act. On account of prison conditions, prisoners worked an average of five to six hours per day. Although this was not required by any provision of the Convention, prisoners received remuneration. The amounts were fixed by law and varied between EUR 5.00 and EUR 7.50 per hour according to the type of work performed. Periods spent by prisoners undergoing therapeutic or social treatment were regarded as working hours up to a maximum of five hours per week. This was clearly a beneficial form of treatment, underlining that resocialisation was the aim of prison work. The fact that part of the remuneration was used as a maintenance contribution was not at variance with the Convention.

In sum, regarding its nature and aim, prison work differed considerably from regular employment. The former, corresponding to a statutory obligation, was geared to resocialisation and reintegration, while the latter was based on an employment contract and served the purpose of securing a person's subsistence and professional advancement. Consequently, treating periods of prison work differently for the purpose of old-age pension insurance was not only justified but was required by the different factual situation. Counting periods for which no contributions were made as insurance periods would give working prisoners an unjustified advantage over regular employees.

The legislature's decision not to count periods during which a prisoner worked as qualifying or substitute periods was likewise based on objective reasons in the Government's submission. Under the relevant provisions of the General Social Security Act, periods spent in prison were, inter alia, treated as qualifying periods if the person concerned had been granted compensation in respect of the detention under the Compensation (Criminal Proceedings) Act. In that case the State had to pay the social security contributions in order to compensate the person concerned for disadvantages suffered under social security law as a result of the detention. To treat persons who were lawfully imprisoned in the same way would lead to equal treatment of unequal facts. To treat periods spent in detention as substitute periods, without payment of contributions, would also create imbalances in the social security system. Generally, the legislature considered that substitute periods were periods during which persons were prevented from making contributions on socially accepted grounds, such as school education, childbirth, unemployment, illness, military or alternative military service.

Moreover, it was open to prisoners to make voluntary contributions to the old-age pension system under section 17 of the General Social Security Act. That Act also provided for the possibility of reducing the amount to be paid to a lower level than that of normal contributions. However, the Government stated that, for data protection reasons, they were unable to provide statistical data on the number and proportion of prisoners making use of this possibility.

In the alternative, the Government argued that even assuming that working prisoners were in an analogous situation to regular employees, the difference in treatment was justified. In practice, even if prisoners were not excluded from affiliation to the old-age pension system, they would not be able to make meaningful contributions, as very often their remuneration, after deduction of the maintenance contribution, would not reach the threshold of EUR 366.33 of so-called marginal earnings, below which employees were in any case not covered by compulsory insurance under the General Social Security Act. Given the strained financial situation of the social security institutions, only persons who were able to make meaningful contributions could be included in the old-age pension system.

Moreover, Contracting States enjoyed a wide margin of appreciation in the organisation of their social security systems. Even the 2006 European Prison Rules only recommended that ‘as far as possible, prisoners who work shall be included in national social security systems’.

The Government explained that since the 1993 amendment of the Unemployment Insurance Act, working prisoners had been affiliated to the unemployment insurance scheme. This amendment, which was part of a broader reform of the system of execution of sentences, had been preceded by years of intensive discussion. The decision to integrate prisoners into the unemployment insurance scheme but not the old-age pension scheme was motivated by the consideration that unemployment insurance, which encompassed not only financial benefits but access to training courses and job-finding services, was the most effective instrument for furthering prisoners' reintegration after release. It had been seen as a first step towards including them into the social security system at large. However, as insurance under the General Social Security Act encompassed health and accident insurance plus affiliation to the old-age pension system, and prisoners' health care and accident insurance were provided for by the prison authorities under the Execution of Sentences Act, their affiliation to the old-age pension scheme would have necessitated more complex amendments. Moreover, according to studies carried out at the time, it was considered to be the most cost-intensive factor.

In addition, the Government pointed out that cases such as the present one with very lengthy prison terms were extremely rare. The majority of prisoners were in a position to accumulate a sufficient number of insurance months on account of the periods worked outside prison. In the present case the applicant had received unemployment benefits and, since their expiry, had continued to receive emergency relief payments.

Finally, the Austrian legislature's decision thus far not to affiliate prisoners to the old-age pension scheme provided for in the General Social Security Act did not mean that they did not enjoy any social cover. Firstly, as stated above, they were covered by the unemployment insurance scheme. Consequently, they received unemployment benefits and, upon their expiry, emergency relief payments. As a last resort, the system of social assistance provided a means-tested minimum income for persons who could not cover their basic needs by any other means. In sum, the Austrian legal system provided for a differentiated and well-balanced solution taking into account the interests of society at large on the one hand and the interests of prisoners on the other hand.

The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. The application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall ‘within the ambit’ of one or more of the provisions in question. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and its Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, for which the State has voluntarily decided to provide (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, §§ 39–40, ECHR 2005-X; Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009-…; and, most recently, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010-…).

According to the Court's established case-law, the principles which apply generally in cases under Article 1 of Protocol No. 1 are equally relevant when it comes to welfare benefits. In particular, this Article does not create a right to acquire property. It places no restriction on the Contracting State's freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme. If, however, a Contracting State has in force legislation providing for the payment as of right of a welfare benefit — 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 (dec.), cited above, § 54; Andrejeva, cited above, § 77; and Carson, cited above, § 64).

Moreover, in cases such as the present one, concerning a complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 that the applicant has been denied all or part of a particular benefit on a discriminatory ground covered by Article 14, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question (see Gaygusuz v. Austria, 16 September 1996, § 40, Reports of Judgments and Decisions 1996-IV, and Willis v. United Kingdom, no. 36042/97, § 34, ECHR 2002-IV). Although Article 1 of Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14 (see Stec and Others (dec.), cited above, § 55, and Andrejeva, cited above, § 79).

In the present case the applicant, having reached pensionable age, claimed an old-age pension which is due as of right on condition that a minimum number of insurance months have been accumulated. The Court considers that the social security legislation at issue creates a proprietary interest falling within the scope of Article 1 of Protocol No. 1. Applying the test whether the applicant would have had an enforceable right to receive a pension had it not been for the condition of entitlement he alleges to be discriminatory, the Court notes that it is undisputed that the applicant had worked for some twenty-eight years in prison without being affiliated to the old-age pension system. His request for an old-age pension was refused on the ground that he lacked the required minimum number of insurance months. It follows that, had he been affiliated to the old-age pension system for work performed in prison, he would have accumulated the necessary number of insurance months and would consequently have been entitled to a pension.

The Government did not contest the applicability of Article 14 of the Convention taken together with Article 1 of Protocol No. 1. Nevertheless, they argued that the applicant's income as a prisoner was insufficient for him to pay contributions to the old-age pension system: following deduction of the maintenance contribution, his remuneration did not exceed the marginal earnings threshold below which any employee was exempted from compulsory insurance under the General Social Security Act. The Court considers that this argument, which is itself intrinsically linked to the applicant's position as a prisoner, cannot invalidate the conclusion reached above.

In conclusion, the Court finds that the applicant's claims fall within the scope of Article 1 of Protocol No. 1 and the right to peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 applicable.

The Court reiterates that Article 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 § 1 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Siliadin v. France, no. 73316/01, § 112, ECHR 2005-VII, and Rantsev v. Cyprus and Russia, no. 25965/04, § 283, ECHR 2010-… (extracts)).

Article 4 § 2 of the Convention prohibits ‘forced or compulsory labour’. In interpreting Article 4, the Court has in previous cases taken into account the relevant ILO Conventions, which are binding on almost all of the Council of Europe's member States, including Austria, and especially the 1930 Forced Labour Convention (see Van der Mussele v. Belgium, 23 November 1983, § 32, Series A no. 70, and Siliadin, cited above, § 115).

The Court noted in those cases that there was in fact a striking similarity, which was not accidental, between paragraph 3 of Article 4 of the Convention and paragraph 2 of Article 2 of ILO Convention No. 29. Paragraph 1 of the last-mentioned Article provides that ‘for the purposes’ of the latter convention, the term ‘forced or compulsory labour’ means ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’ (see Siliadin, cited above, § 116). The Court regarded this definition as a starting-point for the interpretation of Article 4 of the Convention but noted that sight should not be lost of the Convention's special features or of the fact that it was a living instrument to be read ‘in the light of the notions currently prevailing in democratic States’ (see Van der Mussele, cited above, § 32).

Article 4 § 3 (a) indicates that the term ‘forced or compulsory’ labour does not include ‘any work to be done in the ordinary course of detention’.

The Court has noted the specific structure of Article 4. Paragraph 3 is not intended to ‘limit’ the exercise of the right guaranteed by paragraph 2, but to ‘delimit’ the very content of that right, for it forms a whole with paragraph 2 and indicates what the term ‘forced or compulsory labour’ is not to include (‘n'est pas consideré comme ‘travail forcé ou obligatoire’…’). This being so, paragraph 3 serves as an aid to the interpretation of paragraph 2. The four subparagraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of general interest, social solidarity and what is normal in the ordinary course of affairs (see Van der Mussele, cited above, § 38; see also Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291-B, and Zarb Adami v. Malta, no. 17209/02, § 44, ECHR 2006-VIII).

The Court's case-law concerning prison work is scarce. In one of its early judgments the Court had to consider work a recidivist prisoner was required to perform, his release being conditional on accumulating a certain amount of savings. While accepting that the work at issue was obligatory, the Court found no violation of Article 4 of the Convention on the ground that the requirements of Article 4 § 3 (a) were met. In the Court's view the work required ‘did not go beyond what is ‘ordinary’ in this context since it was calculated to assist him in reintegrating himself into society and had as its legal basis provisions which find an equivalent in certain other member States of the Council of Europe’ (see Van Droogenbroeck v. Belgium, 24 June 1982, § 59, Series A no. 50, with reference to De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 89–90, Series A no. 12).

In respect of prisoners' remuneration and social cover, the Court refers to the decision of 6 April 1968 by the European Commission of Human Rights in the case of Twenty-one Detained Persons v. Germany (nos. 3134/67, 3172/67, 3188-3206/67, Collection 27, pp. 97–116), in which the applicants, relying on Article 4, complained that they were refused adequate remuneration for the work which they had to perform during their detention and that no contributions under the social security system were made for them by the prison authorities in respect of the work done. The Commission declared their complaint inadmissible as being manifestly ill-founded. It noted that Article 4 did not contain any provision concerning the remuneration of prisoners for their work. Moreover, it referred to its consistent case-law, which had rejected as being inadmissible any applications by prisoners claiming higher payment for their work or claiming the right to be covered by social security systems.

The Court had to examine a similar complaint from a somewhat different angle in the case of Puzinas (cited above). The applicant complained under Articles 4 and 14 of the Convention and Article 1 of Protocol No. 1 that the domestic social security legislation was inadequate in that it did not permit prisoners to claim pension or any other social benefits for prison work. The Court examined the complaint in the first place under Article 1 of Protocol No. 1, noting that it was undisputed that the applicant was not entitled to any pension or social benefits under the relevant domestic legislation. Finding that the applicant therefore had no possessions within the meaning of Article 1 of Protocol No. 1 regarding his future entitlement to or the amount of a pension, the Court rejected the complaint under this provision, as well as under the other provisions relied on, as being incompatible ratione materiae with the provisions of the Convention.

The Court has to examine whether the applicant in the present case had to perform ‘forced or compulsory labour’ contrary to Article 4 of the Convention. The Court notes that the applicant was under an obligation to work in accordance with section 44(1) of the Execution of Sentences Act. Refusal to perform the work assigned to him constituted an offence under section 107 of that Act, punishable under section 109 by penalties ranging from a reprimand to solitary confinement.

Taking the definition of forced or compulsory labour contained in Article 2 § 1 of ILO Convention No. 29 as a starting-point for the interpretation of Article 4 § 2 of the Convention (see Van der Mussele, cited above, §§ 32–34), the Court has no doubt that the applicant was performing work ‘for which he had not offered himself voluntarily under the menace of a penalty’.

While this does not appear to be in dispute between the parties, they differ in their view as to whether his work was covered by the terms of Article 4 § 3 (a) of the Convention, which exempts ‘work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of the Convention’ from the term ‘forced or compulsory labour’. The Government answered the question in the affirmative, concluding that the work performed by the applicant as a prisoner did not fall within the scope of Article 4. The applicant for his part asserted that prison work without affiliation to the old-age pension system was not covered by the provision in question. Therefore, it constituted ‘forced or compulsory labour’ in violation of Article 4 § 2.

The Court has not yet had an opportunity to examine the question whether Article 4 requires Contracting States to include working prisoners in the social security system. It notes that the above-mentioned decision of the Commission in Twenty-one Detained Persons v. Germany (cited above), which answered the question in the negative, dates from 1968. The Court will therefore have to assess whether the position adopted in that decision is still valid in respect of the work performed by the applicant as a prisoner without being affiliated to the old-age pension system.

The wording of the Convention does not give any indication as regards the issue of working prisoners' affiliation to the national social security system. However, in establishing what is to be considered ‘work required to be done in the ordinary course of detention’, the Court will have regard to the standards prevailing in member States (see Van Droogenbroeck, cited above, § 59).

The applicant relies in essence on the Court's doctrine that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, for instance, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002-VI; and Van der Mussele, cited above, § 32). He appears to be arguing that European standards have changed to such an extent that prison work without affiliation to the old-age pension system can no longer be regarded as ‘work required to be done in the ordinary course of detention’.

The Court notes that the applicant worked for lengthy periods in prison, starting in the 1960s. At that time the Commission, in its decision in Twenty-one Detained Persons v. Germany (cited above), held that Article 4 of the Convention did not require working prisoners to be affiliated to the social security system. The 1987 European Prison Rules remained silent on the issue of working prisoners' affiliation to the social security system. The Court acknowledges that, subsequently, significant developments have taken place in the field of penal policy. These developments are reflected in the 2006 European Prison Rules, which contain the principle of normalisation of prison work as one of the basic principles. More specifically in the present context, Rule 26.17 of the 2006 Rules provides that ‘as far as possible, prisoners who work shall be included in national social security systems’.

However, having regard to the current practice of the member States, the Court does not find a basis for the interpretation of Article 4 advocated by the applicant. According to the information available to the Court, while an absolute majority of Contracting States affiliate prisoners in some way to the national social security system or provide them with some specific insurance scheme, only a small majority affiliate working prisoners to the old-age pension system. Austrian law reflects the development of European law in that all prisoners are provided with health and accident care and working prisoners are affiliated to the unemployment insurance scheme but not to the old-age pension system.

In sum, it appears that there is no sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system. While Rule 26.17 of the 2006 Rules reflects an evolving trend, it cannot be translated into an obligation under Article 4 of the Convention. Consequently, the obligatory work performed by the applicant as a prisoner without being affiliated to the old-age pension system has to be regarded as ‘work required to be done in the ordinary course of detention’ within the meaning of Article 4 § 3 (a).

The Court concludes that the work performed by the applicant was covered by the terms of Article 4 § 3 (a) of the Convention, and did not therefore constitute ‘forced or compulsory labour’ within the meaning of Article 4 § 2 of the Convention.

Consequently, there has been no violation of Article 4 of the Convention.