Year: 2012 (Date of Decision: 15 February, 2012)
Forum, Country: Supreme Court; Denmark
Standards, Rights: Core content; Non-discrimination and equal protection of the law; Margin of discretion; Right to an adequate standard of living; Right to social security; Migrants
Summary Background: After having been granted refugee status in 2003, the applicant received ‘Start Help’ benefits (reduced unemployment benefits) until 2007, instead of regular unemployment benefits, which could only be granted to persons who had spent at least seven years in Denmark.
He claimed that this violates article 75.2 of the Constitution, which obliges the State to help those who cannot support themselves. Moreover, he alleged a violation of article
articleThe enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. ECHR (prohibition of discrimination) in conjunction with article
1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. (right to respect for private and family life) and article
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Protocol 1 ECHR (protection of property) because the requirement of having spent at least seven years in Denmark affects relatively more foreigners than Danish nationals and therefore constituted an indirect discrimination.
Holding: The Supreme Court found that article 75.2 of the Constitution entails an obligation for the State to ensure a minimum level of existence for persons covered by it. However, the court found that the size of the ‘Start Help’ and other benefits that the applicant received were sufficient to satisfy this provision. With regard to the ECHR, the Court noted that it leaves the States wide discretion to determine matters of social and economic policy. Therefore, the Court held that ‘Start Help’ did not constitute indirect discrimination in contravention to article 14 ECHR in conjunction with article 1 Protocol 1 ECHR.
Additional Comments: ‘Start Help’ was abolished in December 2011 and the regular unemployment benefits may now be obtained even if the person in question has not resided in Denmark for a specified period of time.
Link to Full Case: http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/den/den-2012-3-001