Property rights with public character
Property rights with public character such as the right to old-age pension,1839 disability pension1840 or maternity pay,1841 represent “possessions” within the meaning of Article 1 of Additional Protocol No.1 to the ECHR. However, it is necessary to determine the existence of a legal basis, i.e., the fulfilment of the requirements to acquire such a right in each individual case.1842 The payment of contributions to the pension fund can be considered as property, i.e., ownership of a share in the fund. However, Article 1 of Additional Protocol No. 1 to the ECHR does not provide the right to social benefits or reimbursement of certain amounts (aside from those provided for by the law).1843 Contributions to the housing fund are nothing but taxes or solidarity contributions, which is not enough to acquire the ownership right to a portion of the fund.1844 The ownership also includes the crafts and trade permission to run a restaurant.1845 The payments of taxes1846 or customs duties are included in the protected scope but only in case of arbitrariness by public authorities.1847
Footnotes
U 5/00; AP 639/04, paragraph 20 et seq.; AP 1028/04, paragraph 15 et seq.; CH/01/7635, paragraph 33 et seq.
CH/03/13520, paragraph 37 et seq.
AP 36/03, paragraph 25.
CH/02/11321, paragraph 30, with regards to the determination of disability pension by the medical commission, CH/02/9348, paragraph 17, with regards to the recognition of the right to pension so as to include the years of service effectuated abroad.
Compare, CH/98/706 et al.-A&M, paragraph 82, with reference to the EComHR, Müller v. Austria, 1 October 1975, D.R. 3, p. 31; Tricković v. Slovenia, 27 May 1998; ECtHR, Gaygusuz v. Austria, 31 August 1996, Reports 1996-IV, paragraph 41; CH/98/875 et al.-A&M, paragraph 64; CH/99/1554-A, paragraph 5; CH/02/8923 et al.-A&M, paragraph 81 et seq.; CH/03/12994-A&M, paragraph 88; CH/02/10046- A&M, paragraph 76.
CH/01/8068, paragraph 4; CH/02/10828, paragraph 9.
CH/02/9868-A&M, paragraph 80 et seq.
U 27/01, paragraph 27.
Compare, AP 28/03, paragraph 33.