issued by the Registrar of the Court  
no. 172  
03.03.2011  
Refusal to grant lawyer old-age pension after he lost right to  
practice: unjustified  
In today’s Chamber judgment in the case Klein v. Austria (application no. 57028/00),  
which is not final1, the European Court of Human Rights held, unanimously, that there  
had been:  
A violation of Article 1 of Protocol No. 1 (protection of property) of the European  
Convention on Human Rights.  
The case concerned Mr Klein’s complaint of being refused an old-age pension despite his  
contributions to the Chamber of Lawyers’ pension fund throughout his career.  
Principal facts  
The applicant, Anton Klein, is an Austrian national and a former lawyer who was born in  
1932 and lives in Vienna. Admitted to the bar in 1964, he lost his right to practice as a  
lawyer in January 1996 by decision of the Executive Committee of the Vienna Chamber  
of Lawyers after bankruptcy proceeding had been opened against him.  
In August 1997, Mr Klein applied to the Chamber of Lawyers, asking to be granted an  
old-age pension and referring to the fact that he had practised as a lawyer between  
1964 and 1995. The Chamber’s Executive Committee dismissed the application in June  
1998, finding that under the relevant provisions of the statute of its pension fund Mr  
Klein was not entitled to a pension, given that he had lost his right to practice as a  
lawyer, and thus was no longer a member of the Chamber of Lawyers, before reaching  
65, the age of retirement. Mr Klein’s complaint against that decision was dismissed by  
the Administrative Court in July 1999, which held in particular that, being no longer  
enrolled in the List of Lawyers of the Austrian Chamber of Lawyers at the time he  
reached the retirement age, he had no right to an old-age pension. The Constitutional  
Court, by decision of 6 October 1999, refused to deal with his case because it would not  
have any prospect of success.  
The pension scheme for lawyers in Austria is financed by compulsory contributions from  
the members of the pension fund. As an additional source of income, the State pays an  
annual lump sum, divided among the pension funds of the regional Chambers of  
Lawyers, as compensation for the mandatory services rendered by lawyers in the  
context of legal aid, for which they do not receive individual payments.  
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month  
period following its delivery, any party may request that the case be referred to the Grand Chamber of the  
Court. If such a request is made, a panel of five judges considers whether the case deserves further  
examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral  
request is refused, the Chamber judgment will become final on that day.  
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for  
supervision of its execution. Further information about the execution process can be found here:  
www.coe.int/t/dghl/monitoring/execution  
 
Complaints, procedure and composition of the Court  
Mr Klein complained under Article 1 of Protocol No. 1, alone and in conjunction with  
Article 14 (prohibition of discrimination), that the refusal to grant him an old-age  
pension from the pension fund, even though he had paid contributions to that fund  
throughout his career as a lawyer, had violated his property rights and had been  
arbitrary.  
The application was lodged with the European Court of Human Rights on 25 January  
2000.  
Judgment was given by a Chamber of seven, composed as follows:  
Nina Vajić (Croatia), President,  
Anatoly Kovler (Russia),  
Christos Rozakis (Greece),  
Peer Lorenzen (Denmark),  
Khanlar Hajiyev (Azerbaijan),  
George Nicolaou (Cyprus), judges,  
Ewald Wiederin (Austria), ad hoc Judge,  
and also Søren Nielsen, Section Registrar.  
Decision of the Court  
Article 1 of Protocol No. 1  
The Court considered that the affiliation with an old-age pension scheme, based on the  
compulsory membership of a professional organisation during the exercise of a  
profession, might give rise to the legitimate expectation to receive pension benefits at  
the point of retirement and thus constituted a possession within the meaning of Article 1  
of Protocol No. 1. The fact that Mr Klein failed to fulfil the condition of affiliation to the  
Chamber of Lawyers could not lead to the conclusion that he had no possession within  
the meaning of that Article, as the Austrian Government had argued. Moreover, the  
Chamber of Lawyers was a public law body; measures taken by that body therefore  
engaged the responsibility of Austria as a State.  
The refusal to grant Mr Klein an old-age pension constituted an interference with his  
right to peaceful enjoyment of his possessions. It was within the margin of appreciation  
for Member States to provide by law that lawyers who no longer had appropriate  
financial resources and had been declared bankrupt should not exercise that profession.  
However, given that no punitive element had been involved in Mr Klein’s case, such a  
legitimate interest could not go so far as to justify the forfeiture of all of his pension  
claims.  
Given the compulsory nature of the affiliation to the Chamber of Lawyers pension  
scheme and the compulsory contributions to it, that scheme was clearly intended to give  
lawyers reaching the retirement age a pension which largely corresponded to the cover  
provided under the State social security scheme. Thus an old age pension scheme could  
hardly be compared to a contract for damage insurance, which was no longer valid, as  
the Government had argued. While the latter insurance was designed to provide financial  
compensation for damage caused by an exceptional event, the former was intended to  
provide for means of subsistence in the future during a period of life in which the  
capacity to earn an income would be diminished. A lawyer could therefore not be  
expected to subscribe to an additional pension scheme under the social security system  
to protect himself against the complete loss of his pension in case he lost the right to  
exercise his profession. The Court further noted that the Austrian pension scheme for  
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lawyers had been amended in 2003, so that lawyers no longer had to be on the List of  
Lawyers at the time of reaching retirement age in order to be entitled to an old-age  
pension, which showed that that condition was no longer considered appropriate.  
By keeping the circle of potential beneficiaries of the pension scheme small, the Vienna  
Chamber of Lawyers seemed to have strived to keep the contributions to its pension  
fund low. However, when it came to a compulsory scheme, regulations had to take into  
account exceptional situations like Mr Klein’s. By completely depriving him of his  
entitlement to a pension, after having contributed to the pension scheme during his  
entire career both individually and collectively, by rendering services in the context of  
legal aid, no fair balance was struck between the competing interests. There had  
accordingly been a breach of Article 1 of Protocol No. 1.  
In view of these findings, the Court did not consider it necessary to examine the case  
separately under Article 14.  
Article 41  
The Court held that the question of just satisfaction under Article 41 was not ready for a  
decision. It invited the Government and the applicant to submit, within three months of  
the date on which the judgment becomes final, their written observations on the matter  
and to notify the Court of any agreement that they may reach.  
The judgment is available only in English.  
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The European Court of Human Rights was set up in Strasbourg by the Council of  
Europe Member States in 1959 to deal with alleged violations of the 1950 European  
Convention on Human Rights.  
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