The right to minimum subsistence and property protection under the ECHR: Never the twain shall meet?

This article discusses recent developments concerning the right to minimum subsistence as a matter of property protection under the European Convention on Human Rights. It starts with two recent cases: Bélané Nagy v. Hungary and Baczúr v. Hungary. In its judgments in these cases, the European Court of Human Rights emphasised that, in determining whether an interference with a benefit is proportional, an important consideration is whether the individual still receives a subsistence minimum. It moreover held that a right to a (minimum) benefit can exist even if the conditions for receiving this benefit have not been met. Read together, Bélané Nagy and Baczúr flag an increasingly social interpretation of the property right enshrined in Article 1 of the First Protocol to the ECHR involving positive obligations and a focus on the neediest. On a closer look, however, the Court’s interpretation is not a very straightforward one. Judgments rendered after Bélané Nagy and Baczúr show that, although there is a clear trend to protect claimants’ means of subsistence, the relationship between property and a right to such means remains opaque, and the potential of a property right to guarantee the latter, limited. In this article, I present the recent case law against the background of the increasing significance of Article 1 P1 in the field of social security as well as the obstacles to protecting a subsistence minimum. I will delineate the questions that promise to haunt the Court in the cases to come and explore some of the answers it could formulate in this regard. It is argued that a positive right to a subsistence minimum is, for various reasons, unlikely to be developed as a matter of property protection under the Convention.