CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 7 juillet 2011

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text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s9AEA6A4E { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; text-indent:-36pt; text-align:justify; font-size:10pt }     GRAND CHAMBER             CASE OF STUMMER v. AUSTRIA   (Application no. 37452/02)                     JUDGMENT     STRASBOURG   7 July 2011     In the case of Stummer v. Austria, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Jean-Paul Costa, President ,   Nicolas Bratza,   Peer Lorenzen,   Françoise Tulkens,   Josep Casadevall,   Corneliu Bîrsan,   Anatoly Kovler,   Elisabeth Steiner,   Alvina Gyulumyan,   Dean Spielmann,   Sverre Erik Jebens,   Dragoljub Popović,   Giorgio Malinverni,   George Nicolaou,   Ann Power,   Kristina Pardalos,   Vincent A. De Gaetano, judges , and Vincent Berger, Jurisconsult , Having deliberated in private on 3 November 2010 and on 25 May 2011, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 37452/02) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Ernst Walter Stummer (“the applicant”), on 14 October 2002. 2.     The applicant, who had been granted legal aid, was represented by Mr   A. Bammer, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 3.     The applicant complained that he was discriminated against as he was not affiliated to the old-age pension system as a working prisoner and was consequently deprived of a pension. He relied on Article 4 and, in substance, also on Article 14 of the Convention taken in conjunction either with Article 4 or with Article 1 of Protocol No. 1. 4.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). On 11 October 2007 it was declared admissible by a Chamber of that Section, composed of Christos Rozakis, Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens and Giorgio Malinverni, judges, and Søren Nielsen, Section Registrar. On 18 March 2010 a Chamber of that Section, composed of Christos Rozakis, Anatoly Kovler, Elisabeth Steiner, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and George Nicolaou, judges, and Søren Nielsen, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 5.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 6.     The applicant and the Government each filed further observations on the merits (Rule 59 § 1). 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 3 November 2010 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Ms   B. Ohms ,   Deputy Agent , Ms   I. Köck ,   Counsel , Mr   E. D’Aron, Ms   A. Jankovic ,   Advisers ; (b)     for the applicant Mr   A. Bammer ,   Counsel .   The Court heard addresses by Ms Ohms and Mr Bammer, as well as answers by Ms Ohms, Ms Köck and Mr Bammer to questions put by the judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant was not affiliated to the old-age pension system under the General Social Security Act. However, from 1   January 1994 he was affiliated to the unemployment insurance scheme in respect of periods worked in prison. 9.     On 8 February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office ( Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”). 10.     By a decision of 8 March 1999, the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. A list of the applicant’s insurance periods, running from October 1953 to February 1999, was appended to the decision. According to the list, the applicant had accumulated only 117 insurance months. The list shows lengthy periods during which no contributions were made, in particular from May 1963 to May 1964, from July 1965 to September 1968, from June 1969 to January 1974, from April 1974 to March 1984, from June 1984 to May 1986 and from February 1987 to April 1994. Between May 1994 and February 1999 a number of months, during which the applicant received unemployment benefits or emergency relief payments under the Unemployment Insurance Act, were counted as substitute periods. 11.     Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court ( Arbeits- und Sozialgericht ). He submitted that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights. 12.     On 4 April 2001 the Labour and Social Court dismissed the applicant’s claim. It confirmed that the applicant had not completed the required minimum number of insurance months. Referring to section 4(2) of the General Social Security Act, the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme. According to the Supreme Court’s established case-law (judgment no. 10 ObS 66/90 of 27 February 1990 and judgment no. 10 ObS 52/99s of 16 March 1999), their work, corresponding to a legal obligation, differed from work performed by employees on the basis of an employment contract. The difference in treatment under social security law did not disclose any appearance of discrimination. 13.     The applicant, now assisted by counsel, appealed. He argued in particular that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified. Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view, there was no reason not to affiliate them to the old-age pension system. 14.     On 24 October 2001 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal. It held that the Labour and Social Court had correctly applied the law. According to the Supreme Court’s established case-law, prisoners performing obligatory work were not to be treated as employees within the meaning of section 4(2) of the General Social Security Act and were therefore not affiliated to the compulsory social insurance scheme. The fact that, since the 1993 amendment to the Unemployment Insurance Act, prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old-age pension system. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners. In that connection, the Court of Appeal noted that it did not share the applicant’s doubts regarding the possible unconstitutionality of working prisoners’ non-affiliation to the old-age pension scheme. 15.     On 12 February 2002 the Supreme Court ( Oberster Gerichtshof ) dismissed an appeal on points of law by the applicant. Its judgment was served on the applicant on 6 May 2002. 16.     On 29 January 2004 the applicant completed his last prison term. Subsequently, he received unemployment benefits until 29 October 2004 and, upon their expiry, emergency relief payments ( Notstandshilfe ). According to his counsel’s submissions at the hearing, the applicant currently receives some 720 euros (EUR) per month (composed of EUR   15.77 per day plus EUR 167 per month in emergency relief payments and EUR 87 as an allowance towards his rent expenses). II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The General Social Security Act 17.     The basis of the Austrian social security system is laid down in two laws: the General Social Security Act ( Allgemeines Sozialversicherungsgesetz ) and the Unemployment Insurance Act ( Arbeitslosenversicherungsgesetz ). Austrian social security law is based on the contributory principle. 1.     General rules 18.     The General Social Security Act encompasses health and accident insurance and old-age pension. 19.     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)). 20.     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. 21.     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. 22.     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-rearing, military service or unemployment. 23.     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. 2.     Position of prisoners 24.     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 paragraphs 41 and 44 below). 25.     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. 26.     In a judgment of 27 February 1990 (no. 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: “According to the unanimous legal opinion of the competent Federal Ministry ( Collection of Publications in Social Insurance Matters , SVSlg 19.570), the Administrative Court (2 February 1972, 782/71 and 62/72, VwSlgNF 8162 = SVSlg 21.171) and the Vienna Court of Appeal (SVSlg 8.868, 21.172, 26.918, 30.930 and 32.418), this work, which is performed on the basis of a statutory rather than a voluntarily accepted duty to work, does not fall within the scope of the compulsory insurance scheme. Legal commentators also favour the interpretation that social insurance law, like labour law, requires that employment contracts be established voluntarily. Services rendered compulsorily under public law are not based on any service contract. Accordingly, work performed in the context of execution of a sentence cannot be subsumed within section 4(2) of the General Social Security Act (see Krejci-Marhold in Tomandl, SV-System 3. ErgLfg 46; MGA ASVG 49, ErgLfg   125; Krejci in Rummel, ABGB § 1151 Rz 16). In its judgment of 26   November 1971 (B 128/71, VfSlg 6582 = SVSlg 21.170), the Constitutional Court held that the decision of the legislature that work performed in the context of execution of a prison sentence did not fall within the social insurance scheme – because the requisite voluntary acceptance of a specific duty to work required in order to make out a contract of employment necessitating the payment of social insurance contributions was absent – did not infringe the principle of equal treatment. ... The medical care due to prisoners in accordance with sections 66 et seq. of the Execution of Sentences Act and the benefits due to them, in accordance with sections   76 et seq. of that Act, after work-related accidents or illnesses within the meaning of section 76(2-4) of that Act, provide to this category of persons a statutory health and accident insurance scheme adapted to the prison context. The fact that prisoners also, in the context of their duty to work – other than, for example, in the context of an employer-employee relationship – are not covered by compulsory insurance under the statutory pension scheme is justifiable on grounds of the above-mentioned substantive differences in relationship and accordingly – as held by the Constitutional Court in its judgment – does not infringe the principle of equal treatment. Periods spent in pre-trial detention or serving a prison sentence or in preventive detention will, in accordance with the General Social Security Act, only be regarded as compulsory contributory periods if the custodial measures have been imposed either on political grounds – other than national socialist activity – or on religious grounds or on grounds of descent (section 500 and section 502(1)) or if an Austrian court (in accordance with the Compensation (Criminal Proceedings) Act) has given a binding decision in respect of the periods of detention recognising a claim for damages for the detention or conviction (section 506a). Such periods of time, regarded as valid compulsory contributory periods, are to be regarded in the first-mentioned case as not requiring the payment of contributions (section 502(1), third sentence); in the second-mentioned case, the Federal State shall pay the corresponding contributions to the relevant insurance institution (section 506a, second sentence). The purpose in both cases is to compensate for the disadvantages incurred under social insurance law that have arisen on socially acceptable grounds rather than deprivation of liberty on grounds of guilty conduct. An extension of these exceptional provisions to time served in detention on grounds of culpable conduct would be contrary to the principle of equal treatment. Recognition of such periods of time as substitute periods would also be contrary to the principle of equal treatment, for similar reasons. ... Prisoners to whom the above-mentioned exceptions under section 502(1) and section   506a do not apply shall not thereby accumulate, in the context of their duty to work, either contributory periods under the compulsory insurance scheme or substitute periods. They are not, however, prevented by the execution of the sentence from continuing to make contributions to the old-age pension insurance scheme under section 17 and accumulating contributory periods through the payment of voluntary contributions, whereby continued insurance, at the request of the contributor, as far as this appears justified on the basis of his or her economic situation, shall be permitted, in accordance with section 76a(4), at a lower contribution level than the one provided for in subsections (1-3) of that provision. In accordance with section 75(3) of the Execution of Sentences Act, prisoners are to be informed of the possibilities and advantages of, inter alia , optional continued insurance, and they are also permitted to use funds for the payment of contributions to the social insurance scheme which are not otherwise available to them during execution of their sentence. By virtue of the very flexible continued insurance (see section 17(7-8)) – particularly in respect of the beginning, end and determination of the contributory months – a prisoner can also accumulate further contributory months in order to make up the qualifying period and/or obtain a higher pensions increment. In this connection, the fact should not be overlooked that if one were to proceed on the basis that a prisoner is covered under the invalidity and old-age pension insurance scheme in respect of work done during the execution of the sentence, contributions would accordingly have to be made for the relevant periods. Other than under section 506a, according to which the Federal State has to pay the contributions corresponding to these contributory periods (as part of the criminal compensation scheme) to the relevant insurance institution, a State contribution would not be reasonable here. ... It would not be reasonable in such cases to expect the community of insured persons to accept that periods for which no contributions have been made should give rise to pension entitlements; prisoners would have to make such contributions, so the position would not be essentially different from optional insurance. Accordingly, if the legislature has decided that work done in the context of a prisoner’s duty to work cannot fundamentally give rise to compulsory contributory periods or substitute periods and, in the light of that, has made provision only for the above-mentioned exceptions, that decision is based on objective considerations. Accordingly, the Supreme Court has no doubts regarding the constitutionality of the statutory provisions applicable to the present case.” 27.     In a judgment of 16 March 1999 (no. 10 ObS 52/99s) the Supreme Court confirmed its previous judgment. 28.     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. B.     The Unemployment Insurance Act and relevant practice 29.     Employees are also affiliated to the unemployment insurance scheme. Compulsory contributions have to be paid in part by the employer and in part by the employee. 30.     Since the 1993 amendment to the Unemployment Insurance Act, prisoners who perform work in accordance with section 44(1) of the Execution of Sentences Act are affiliated to the unemployment insurance scheme pursuant to section 66a of the Unemployment Insurance Act. The employee’s part of the contributions is to be paid from the prisoner’s remuneration, if the remuneration exceeds the marginal earnings threshold, while the employer’s part is to be paid by the State, through the Ministry of Justice. The amendment came into force on 1 January 1994. 31.     As regards the amendment to the law, which formed part of a broader reform of the system of execution of sentences, the Parliamentary Judicial Committee ( Justizausschuß ) considered the affiliation of working prisoners to the unemployment insurance scheme to constitute a first step towards their full integration into the social security system. The Judicial Committee underlined that affiliating working prisoners to the unemployment insurance scheme was an important step towards increasing their chances of reintegration into society and limiting the prospect of recidivism (see p. 1253 of the annex to the minutes of the National Council ( Beilagen zu den Stenographischen Protokollen des Nationalrates , XVIII.GP). 32.     Entitlements under the Unemployment Insurance Act include access to training courses, job-search facilities, and payment of unemployment benefits (which, to a certain extent, are related to previous salary) for a certain period. Upon the expiry of unemployment benefits, the insured person is entitled to payment of emergency relief, which is designed to provide a minimum amount of subsistence. Emergency relief will continue to be paid after a person has reached pensionable age if no entitlement to a pension is granted. 33.     At the hearing, the Government provided the following information on the percentage of working prisoners and prisoners receiving unemployment benefits following their release. (a)     In 2009, 12,460 persons were detained, of whom 8,903 (approximately 71%) were working and thus covered by unemployment insurance. Only 2,490 of these working prisoners actually paid contributions as they earned more than the required minimum level, and the others did not have to pay contributions. (b)     Between 1 January and 30 June 2010, 9,477 persons were detained, of whom 6,791 (approximately 71%) were working and thus covered by unemployment insurance. Only 1,879 of these working prisoners actually paid contributions as they earned more than the required minimum level per month, and the others did not have to pay contributions. (c)     Between 1 January 2009 and 30 June 2010, 2,086 persons qualified to receive unemployment benefits on account of the fact that they were included in the unemployment insurance scheme during their prison term; 1,898 of them applied for unemployment benefits upon their release, receiving an average benefit of EUR 21.09 per day (the general average being EUR 26.90 per day). C.     Social assistance 34.     Social security is complemented by means-tested social assistance. The latter is designed to provide persons who do not have the necessary means (personal means or entitlements from old-age pension insurance or unemployment insurance) with a minimum income in order to meet their basic needs. 35.     On 1 September 2010 a new system, namely the means-tested minimum income scheme ( bedarfsorientierte Mindestsicherung ), came into force, replacing social assistance. It guarantees a minimum income to all persons who are willing and able to work or who are over 65 years old and do not have other means of subsistence. The amount is aligned with the minimum pension. D.     The Execution of Sentences Act and relevant practice 36.     Pursuant to section 44(1) of the Execution of Sentences Act ( Strafvollzugsgesetz ), any prisoners who are fit to work are obliged to perform work assigned to them. 37.     Section 45(1) of the Act obliges the prison authorities to provide each prisoner with useful work. Section 45(2) specifies the different kinds of work which may be assigned to prisoners. They include, inter alia , tasks to be carried out within the prison, work for public authorities, work for charities, and work for private employers. 38.     Under section 46(3), the prison authorities may conclude contracts with private enterprises as regards prisoners’ work. 39.     Pursuant to section 51, the Federal State ( der Bund ) receives the proceeds of prisoners’ work. 40.     Prisoners who perform their work satisfactorily have a right to remuneration. The amounts of remuneration – per hour and type of work – are fixed in section 52(1). At current rates, they are as follows: (a)     for light unskilled work       EUR 5.00 (b)     for heavy unskilled work       EUR 5.63 (c)     for manual work         EUR 6.26 (d)     for skilled work         EUR 6.88 (e)     for work performed by a skilled worker   EUR 7.50 41.     The prison authorities have to provide for the livelihood of prisoners (section 31). 42.     Pursuant to section 32 of the Act, all prisoners have to contribute to the costs of the execution of their sentence unless they fall within the scope of certain exceptions. If the prisoner works, the contribution amounts to 75% of his or her remuneration. It is deducted automatically from the remuneration. 43.     Moreover, the employee’s part of the contribution to the unemployment insurance scheme is deducted from the prisoner’s remuneration. The remainder of the prisoner’s remuneration is used as follows: half of it is given to the prisoner as “pocket money” and the other half is kept as savings which the prisoner receives upon release (section 54). 44.     Health and accident care for prisoners is to be provided by the prison authorities pursuant to sections 66 et seq. and 76 et seq. of the Execution of Sentences Act. In essence, the entitlement to health and accident care corresponds to the entitlement under the General Social Security Act. 45.     If prisoners refuse the work assigned to them, this constitutes an offence under section 107(1)(7) of the Execution of Sentences Act. The penalties set out in section 109 range from a reprimand, or a reduction or withdrawal of certain rights (for instance, the right to use “pocket money”, to watch television, to send and receive correspondence or telephone calls), to a fine or house arrest (solitary confinement). 46.     According to the information provided by the Government, more than 70% of prisoners in Austria are currently working. Owing to the requirements of prison routine, the average working day is approximately six hours. However, time spent by a prisoner undergoing therapeutic or social treatment is regarded and remunerated as working time up to a maximum of five hours per week. III.     RELEVANT INTERNATIONAL MATERIALS A.     United Nations instruments 1.     The Forced Labour Convention (No. 29) of the International Labour Organization 47.     The Forced Labour Convention (No. 29) (“ILO Convention No. 29”) was adopted on 28 June 1930 by the General Conference of the International Labour Organization (ILO) and came into force on 1 May 1932. The relevant parts of Article 2 provide as follows: “1.     For the purposes of this Convention the term forced or compulsory labour shall mean 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. 2.     Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include: ... (c)     any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; ...” The International Labour Conference (the annual meeting of member States of the ILO) at its ninety-sixth session in 2007, carried out a general survey concerning ILO 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 ILO 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 the 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 provided in Article 2 § 1 and, consequently, was considered to fall outside the scope of ILO Convention No. 29 (paragraphs 59-60 and 114-16 of the Committee’s report). 2.     The International Covenant on Civil and Political Rights 48.     The International Covenant on Civil and Political Rights was adopted on 16 December 1966 by United Nations General Assembly Resolution 2200A (XXI) and came into force on 23 March 1976. The relevant parts of Article 8 read as follows: “3. (a)     No one shall be required to perform forced or compulsory labour; (b)     Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court; (c)     For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include: (i)     Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; ...” B.     Council of Europe materials 1.     The European Prison Rules 49.     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 the Rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. (a)     The 1987 European Prison Rules 50.     The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted by the Committee of Ministers of the Council of Europe on 12   February 1987. 51.     In Part I, the 1987 Rules contained a number of basic principles, including the following: “1.     The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human dignity and are in conformity with these rules. ... 3.     The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release. ...” 52.     In Part IV, under the heading “Treatment objectives and regimes”, they contained the following rules: “64.     Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this. 65.     Every effort shall be made to ensure that the regimes of the institutions are designed and managed so as: (a)     to ensure that the conditions of life are compatible with human dignity and acceptable standards in the community; (b)     to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self-respect or sense of personal responsibility of prisoners; ...” 53.     Also in Part IV, under the heading “Work”, they contained the following rules: “71.1.     Prison work should be seen as a positive element in treatment, training and institutional management. 71.2.     Prisoners under sentence may be required to work, subject to their physical and mental fitness as determined by the medical officer. 71.3.     Sufficient work of a useful nature, or if appropriate other purposeful activities, shall be provided to keep prisoners actively employed for a normal working day. 71.4.     So far as possible the work provided shall be such as will maintain or increase the prisoner’s ability to earn a normal living after release. ... 72.1     The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community so as to prepare prisoners for the conditions of normal occupational life. ... ... 74.1.     Safety and health precautions for prisoners shall be similar to those that apply to workers outside. 74.2.     Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to workers outside. ... 76.1.     There shall be a system of equitable remuneration of the work of prisoners.” (b)     The 2006 European Prison Rules 54.     On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”. 55.     Part I of the 2006 Rules contains the following basic principles, inter alia : “2.     Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3.     Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. ... 5.     Life in prison shall approximate as closely as possible the positive aspects of life in the community. 6.     All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.” The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems ) notes that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights, so that restrictions should be as few as possible. The commentary observes that Rule 5 underlines the positive aspects of normalisation, recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”. 56.     In Part II (“Conditions of imprisonment”), Rule 26 of the 2006 Rules deals with the various aspects of prison work. The relevant parts thereof read as follows: “26.1     Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment. 26.2     Prison authorities shall strive to provide sufficient work of a useful nature. 26.3     As far as possible, the work provided shall be such as will maintain or increase prisoners’ ability to earn a living after release. ... 26.7     The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community in order to prepare prisoners for the conditions of normal occupational life. ... 26.9     Work for prisoners shall be provided by the prison authorities, either on their own or in cooperation with private contractors, inside or outside prison. 26.10     In all instances there shall be equitable remuneration of the work of prisoners. ... 26.13     Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside. 26.14     Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside. ... 26.17     As far as possible, prisoners who work shall be included in national social security systems.” The commentary on Rule 26 underlines the principle of normalisation of prison work in that provisions for health, safety, working hours and “even involvement in national social security systems” should reflect those for workers on the outside. In contrast, the 1987 Rules, although they contain the notion of normalisation of prison work, are silent on the question of prisoners’ inclusion in national social security systems. 57.     Part VIII of the 2006 Rules, entitled “Sentenced prisoners”, contains further rules regarding the objective of the regime for sentenced prisoners: “102.1     In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life. 102.2     Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” 58.     It also deals with work as one aspect of the regime for sentenced prisoners. The relevant parts of Rule 105 provide as follows: “105.2     Sentenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner. 105.3     If sentenced prisoners are required to work, the conditions of such work shall conform to the standards and controls which apply in the outside community.” 2.     The European Social Charter 59.     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: “ With a view to ensuring the effective exercise of the right to work, the Parties under ­ take: 1.     to accept as one of their primary aims and respon ­ sibili ­ ties the achieve ­ ment and maintenance of as high and stable a level of employ ­ ment as possible, with a view to the attainment of full employment; 2.     to protect effectively the right of the worker to earn his living in an occupation freely entered upon; ...” 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). C.     Comparative European law 60.     From the information avail