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Views -
M.A. Lopez Rodriguez v Spain, Communication 1/2013 – No violation
The Committee has published its Views for the second
communication it decided at its last session, pursuant to the
Optional Protocol ICESCR (OP-ICESCR): M.A. Lopez Rodriguez v
Spain, Communication 1/2013, E/C.12/57/D/1/2013 (currently
available only in Spanish).
The case was against Spain and involved a person
with a disability who had been receiving a State non-contributory
disability pension. The person was subsequently imprisoned
and the State reduced his pension by an amount equivalent to the
cost of his maintenance in prison. The author of the
communication claimed violations of Articles 2 (social security)
and 9 (non-discrimination) of the Covenant.
On admissibility, the State alleged that the
communication was inadmissible as it was filed outside the
prescribed time limit (OP-ICESCR Art 3(2)(a)). However, the
Committee found the communication admissible and noted that for
the purpose of calculating the 1 year term set out in Art 3(2)(a)
of the Optional Protocol, counting starts from the day following
the date of notification to the author of the final decision of
the national body/court that marks the exhaustion of domestic
remedies. Further, the Committee also applied the notion of
‘continuing facts’ in Article 3(2)(b), noting that in this case whilst
all the facts and judicial decisions occurred before the entry
into force of the OP-ICESCR for Spain (5 May 2013), the author
continued to receive a reduced pension and thus the relevant
facts continued after that date.
However, on the merits, the Committee decided that
there was no violation of the Covenant. The Committee
identified the 2 issues for consideration as:
- Whether
the reduction in the non-contributory disability pension of
the author, by an amount equivalent to the cost of his
maintenance in prison, was a violation of the right to
social security under Article 9 ICESCR; and
- Whether
this reduction amounted to discriminatory treatment contrary
to Article 2.
The Committee’s decision provides some interesting
commentary on the right to social security, the situation of
detainees with respect to this right and the role of the
Committee in examining communications vis-à-vis the role of State
courts.
The Committee stated that a reduction in the amount
of a non-contributory pension is compatible with the Covenant,
provided that it is prescribed by law, reasonable and
proportionate. In this case, the Committee found that the measure
was prescribed by law and was for a reasonable purpose which was
consistent with the Covenant, being the protection of public
resources necessary for the realisation of the Covenant rights of
all people.
The Committee distinguished contributory from non-contributory
pensions, stating that in relation to non-contributory pensions
provided exclusively by the public purse, States have the
discretion to allocate fiscal resources in the most appropriate
manner possible in order to ensure the realisation of all
Covenant rights, including ensuring that the social security
system provides minimum essential levels of benefits for
all. This includes the State discretion to replace the
provision of a cash benefit with in-kind support, so long as this
does not have a disproportionate impact on the particular
individual.
The Committee noted that in this case there was no
evidence provided of a disproportionate impact on the author and
thus the facts do not support a finding of violation of Article
9. The Committee explicitly indicated some areas where the author
may have demonstrated a disproportionate impact, such as, if the
reduction undermined his ability to meet his basic needs or those
of his family, or had a disproportionate impact because of his
disability and associated costs. Thus the Committee left
open the possibility for future arguments about proportionality
where appropriate evidence and documents are provided to
substantiate a disproportionate impact.
On the discrimination point, the Committee also
found no violation. The author made 3 allegations with respect to
discrimination: first, vis-à-vis other prisoners receiving a
non-contributory pension in other parts of the country (due to
inconsistent Court decisions); second, vis-à-vis other prisoners
who are not recipients of a non-contributory pension and receive
free maintenance whilst in prison; and third, vis-à-vis other
persons who receive a non-contributory pension and receive free
food and accommodation in other public institutions such as
hospitals.
In addressing these allegations, the Committee began
by noting that not every differentiation of treatment will
constitute discrimination and differential treatment may be
permissible, where the criteria for such treatment are reasonable
and objective and where the aim is to achieve a legitimate
purpose under the Covenant. Further, the Committee noted that
persons with disabilities and persons deprived of liberty are at
a greater risk of discrimination than the general population and
thus the Committee must exercise a higher level of scrutiny in
examining these allegations of discrimination.
The Committee found that discrimination was not
substantiated in any of the 3 categories. The 3rd
category received the greatest attention from the Committee and
was the more complicated to dismiss. The Committee highlighted
the fact that prisoners are serving a sentence imposed by a court
for a defined period of usually months or years. Whereas a free
person who goes to a hospital goes voluntarily and stays for an
indefinite period of usually days or weeks. In the case of
prisoners, it is generally easier to determine the cost of
maintenance, the period of time it is required and whether the
person’s needs are sufficiently covered by the prison services.
Therefore, the Committee decided that there were significant
differences which justified the State treating differently people
receiving non-contributory pensions who are in prison compared
with those who are not in prison and receive free food and
accommodation at public institutions (eg: hospitals).
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