Economic Crisis and Fundamental Human Rights: Extracts from the Case Law of the ECtHR on Austerity Measures

https://doi.org/10.63189/SQFK3985

It goes without saying that, during times of economic crisis, states have to opt for austerity measures in order to cut spendings and increase revenues. Nonetheless, as Julia Laffranque, former judge of the European Court of Human Rights (hereinafter ECtHR or Court) pointed out at a legal forum in 2013, “regardless of the crisis – both during and outside the crisis – human beings and respect for their rights should be of primary importance.”^[1] Taking into account the austerity measures adopted in Romania over recent months, this contribution aims to extract from the ECtHR’s case law the relevant findings of the Court on the relationship between austerity measures and fundamental human rights.

With regard to social rights, it can be generally said that, unlike political or civil rights, they also encompass social goals by their very nature. At the same time, it is precisely this specific nature that calls into question the force of these second-generation fundamental rights. Hence, the economic crisis and the need for a balance between social rights and austerity measures essentially served as a valuable test in determining the precise “weight” of social rights.^[2] At the same time, resources (especially material ones) are salient when analysing state obligations connected to these rights.^[3] All in all, it is still a question whether social rights contained in international or regional documents are “‘real rights’ producing strictly legal obligations or are they just programmatic objectives, general goals to be tentatively achieved.”^[4] Due to these debates concerning the effectiveness of social rights, in times of scarcity their protection becomes more pivotal.

As it happens, the European Convention on Human Rights (hereinafter ECHR) does not protect any economic or social right; yet the ECtHR – based on its living instrument doctrine – has on several occasions examined, for example, the reduction of remuneration of public servants or reduction of pensions from the perspective of possible violations of the protection of property (Article 1 of Protocol No 1 ECHR) or the right to a fair trial (Article 6 ECHR). Even though, in these cases – as will be seen below – the ECtHR “adopted a strict self-restraint in judging alleged violations of the right to property”,^[5] we believe that numerous findings can be pointed out from the judgments.

The Court analysed the reduction of salaries of judges through the lens of the right to property in case of Savickas v. Lithuania^[6] (together with five other applications). In examining the applications, the ECtHR highlighted that “a ‘fair balance’ must be struck between the demands of the general interest of the community and the requirements of the protection of individual’s fundamental rights.”^[7]  Nevertheless, in the given case the austerity measures were adopted in a particularly difficult and unexpected economical crisis, and the reduction of salaries “formed part of a much wider programme of austerity measures affecting salaries in the entire public sector.”^[8]  Moreover, the adopted measures were only “temporary and applied for the duration of the economic and financial crisis.”^[9] As a conclusion, the applications were declared manifestly ill-founded, thus inadmissible.

In the case of Koufaki and ADEDY v. Greece,^[10] the ECtHR reviewed the austerity measures adopted by the Greek Government on the reduction of remunerations and bonuses of public servants and on the elimination of thirteenth and fourteenth months’ pensions.  The ECtHR found that the reduction of the applicants salary was not as to place the applicant “at risk of having insufficient means to live on and thus to constitute breach of Article 1 of Protocol No. 1.”^[11] As regards the elimination of thirteenth and fourteenth months’ pensions, the Court noted that the Greek Government in fact replaced these pensions by a new bonus meant for small pensioners.^[12] Moreover, the Court considered the delicate economic context in which the above measures were adopted.^[13] Based on these observations, the applications were declared inadmissible as they were manifestly ill-founded. As a critiqu of the Judgment, some scholars have stated that “the ECtHR overlooked the humanitarian aspects of the economic crisis in Greece, as it did not confer a subsistence quality to the right to property.”^[14]

The reduction of holiday and Christmas subsidies as an austerity measure was reviewed by the ECtHR in the case of Da Conceição Mateus v. Portugal and Santos Januário v. Portugal^[15] the ECtHR emphasised that states have a wide margin of appreciation concerning economic or social policy measures, and this margin is “even wider when the issues involve an assessment of the priorities as to the allocation of limited State resources.”^[16] In analysing whether a fair balance existed between the general interest and the protection of individual’s rights, the ECtHR concluded that “[i]n the light of the exceptional economic and financial crisis faced by Portugal at the material time and given the limited extent and the temporary effect of the reduction of their holiday and Christmas subsidies, the Court considers that the applicant did not bear a disproportionate and excessive burden.”^[17] Therefore, the applications were declared inadmissible as manifestly ill-founded. Similar conclusions were drawn by the Court, in case of da Silva Carvalho Rico v. Portugal^[18] concerning the application of an extraordinary solidarity contribution (CES), which led to the reduction of retirement pensions.

In total 10,059 applicants contested the Italian Government’s austerity measures concerning the readjustment of old-age pensions in case of Aielli and others and Arboit and others v. Italy.^[19] The ECtHR underlined again, that states have a wide margin of appreciation when adopting policies to save public funds or introducing austerity measures during times of crisis.^[20] The Court also observed that the Italian economic situation was difficult at the time of the adoption of the above measures.^[21] Moreover, the readjustment of old-age pensions did not pose a risk of exposing the applicants to substantial difficulties.^[22] Consequently, the complaints were declare inadmissible. Correspondingly, in case of Žegarac and others v. Serbia^[23] the ECtHR concluded again that “[i]n the light of State’s wide margin of appreciation, and given the limited extent and temporary nature of the reduction in the applicants’ pension payments as part of the effort to balance State expenditures […] the applicants’ complaints under Article 1 of Protocol No. 1 are manifestly ill-founded.”^[24]

At the same time, beside the reduction of pensions, certain states introduced pension cap as an austerity measure. In this respect, the ECtHR ruled – in case of Valkov and others v. Bulgaria^[25] – that the pension cap served a legitimate aim in the public interest, resulted “in savings for the pension system”,^[26] and was implemented during a comprehensive reform of the Bulgarian pension system.^[27] Furthermore, the principle of solidarity between contributors and beneficiaries was also invoked by the ECtHR.^[28] As a conclusion, the Court held that the introduction of a maximum amount pension cap falls within the margin of appreciation of Bulgaria.^[29] Hence, there was no violation of Article 14 (prohibition of discrimination) read in conjunction with Article 1 of Protocol No. 1.

One can observe that the majority of complaints concerning the possible violation of fundamental rights by austerity measures were declared manifestly ill-founded. The ECtHR highlighted in all these cases the limited and temporary nature of the measures, and emphasis was also placed on the difficult economic situation in which all these were adopted. In addition, derived from the above presented case law, one can conclude that states have a wide margin of appreciation whilst adopting austerity measures, therefore the Court will rule “that austerity measures violate rights when they impinge on minimum standards.”^[30] Still, a fair balance must be struck between public (i.e. general) and private (i.e. individual) interests.

^[1] Dialogue Between Judges. European Court of Human Rights, 2013, p. 7.

^[2] Baraggia and Gennusa, 2017, p. 483.

^[3] Ibid., p. 487.

^[4] Ibid., p. 484.

^[5] Ibid., p. 494.

^[6] Case of Savickas v. Lithuania, App. No. 66365/09.

^[7] Ibid., Reasoning 91.

^[8] Ibid., Reasoning 93.

^[9] Ibid., Reasoning 94.

^[10] Case of Koufaki and ADEDY v. Greece, Apps. No. 57665/12 and 57657/12.

^[11] Ibid., Reasoning 47.

^[12] Ibid., Reasoning 48.

^[13] Ibid., Reasoning 47.

^[14] Parvu, 2016, p. 138.

^[15] Case of Da Conceição Mateus v. Portugal and Santos Januário v. Portugal, Apps. No. 62235/12 and 57725/12.

^[16] Ibid., Reasoning 22.

^[17] Ibid., Reasoning 29.

^[18] Case of da Silva Carvalho Rico v. Portugal, App. No. 13341/14.

^[19] Case of Aielli and others and Arboit and others v. Italy, Apps. No. 27166/18 and 27167/18.

^[20] Ibid., Reasoning 26.

^[21] Ibid., Reasoning 29.

^[22] Ibid., Reasoning 41.

^[23] Case of Žegarac and others v. Serbia, App. No. 54805/15.

^[24] Ibid., Reasoning 105.

^[25] Case of Valkov and others v. Bulgaria, Apps. No. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05.

^[26] Ibid., Reasoning 92.

^[27] Ibid., Reasoning 96.

^[28] Ibid., Reasoning 98.

^[29] Ibid., Reasoning 100.

^[30] Baraggia and Gennusa, 2017, p. 496.

References

Baraggia, A. and Gennusa, M. E. (2017) Social Rights Protection in Europe in Times of Crisis: ‘A Tale of Two Cities’, Vienna Journal on International Constitutional Law 11(4), 479–506.

Dialogue Between Judges. European Court of Human Rights (2013) Available at: https://www.echr.coe.int/documents/d/echr/Dialogue_2013_ENG (Accessed at: 12.07.2025).

Parvu, I. (2016) Human Rights in Times of Crisis: The Greek Cases before the ECtHR, Cambridge Journal of International and Comparative Law 5(1), pp. 113–138.