AS TO THE ADMISSIBILITY OF
Application No. 18431/91
by Peter BERNSTORFF
against the Federal Republic of Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 2 September 1992, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
J. A. FROWEIN
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 April 1991 by
Peter Bernstorff against the Federal Republic of Germany and registered
on 1 July 1991 under file No. 18431/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1939. He is
practising as a lawyer in Hannover.
The applicant complains of his obligatory membership in a
professional social insurance institution and of unfairness of
administrative court proceedings which he unsuccessfully instituted
with a view to being exempted from membership of the institution.
By decision of 3 May 1988 the Hannover Administrative Court
(Verwaltungsgericht) dismissed the action. An appeal was rejected by
the Administrative Court of Appeal (Oberverwaltungsgericht) on
26 March 1990. The court did not grant leave to appeal on points of
law. According to the findings of the courts, the defendant pension
fund had in 1984 reduced the applicant's membership fees to one-tenth
of the maximum social security amount, taking into account that he paid
voluntary contributions to the social insurance system. In addition,
in view of his income situation, the applicant had been exempted from
paying contributions.
The administrative courts pointed out that the defendant
institution, the Lawyers' Pension Fund of Lower Saxony
(Niedersächsisches Versorgungswerk der Rechtsanwälte), had been created
in accordance with an Act of 1982 and that the applicant's obligatory
membership followed from Section 2 (1) of this Act given the fact that
he had been under 45 years of age when the Act came into force.
Referring to the case-law of the Federal Administrative Court
(Bundesverwaltungsgericht), the Administrative Court of Appeal pointed
out that the insurance system in question did not violate any
fundamental rights and was not disproportionate or arbitrary. The
court further held that the obligatory insurance system as applied in
the applicant's case did not violate his personal rights. The fact
that he had no income as a lawyer was irrelevant. It was considered
reasonable and justified that even a lawyer without income remained a
member without having to pay contributions. This made it possible for
him to keep his legal status as an insured person and to reactivate his
rights whenever his income situation improved. As he did not have to
pay any contribution his membership did not in any way affect his
voluntary membership in the social insurance system. Even if in view
of a change in his income situation he would have to pay a minimum
contribution (Solidarbeitrag), he would not have to pay more than
96,20 DM per month. This would not unreasonably affect his economic
situation.
The applicant's complaint about the refusal of leave to appeal
on points of law was rejected by the Federal Administrative Court on
27 August 1990 which in its reasoned decision refers to its own
jurisprudence. The Federal Administrative Court fixed the value of
claim in the amount of 31,332.22 DM. On 16 May 1991 the court
corrected this part of the decision in that it fixed the value of claim
at 4,000 DM.
A constitutional complaint (Verfassungsbeschwerde) was likewise
rejected by a panel of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 24 October 1990 as offering no prospect
of success. The court referred to its jurisprudence according to which
the creation of professional insurance institutions of the kind in
question was compatible with the constitution.
The court added that constitutional rights might be affected
where the obligatory membership appeared to result in compulsory
overinsurance in view of other insurance contracts of the person
concerned or constituted an unreasonable economic burden. None of
these two alternatives were found, particularly in view of the fact
that the applicant was exempted from paying contributions. A violation
of his right to be heard did not follow simply from the fact that the
applicant's legal arguments had been rejected or left aside for reasons
of formal or substantive law. Therefore the courts had not acted
arbitrarily in considering irrelevant the applicant's argument that,
from the point of view of insurance mathematics, the age-limit for
becoming an obligatory member could have been lower.
COMPLAINTS
The applicant mainly complains of his obligatory membership in
the social insurance scheme and the refusal of his request to be
exempted.
The applicant further considers that he was denied a fair hearing
and that the Administrative Court of Appeal for formal reasons did not
take into account his main arguments. The Federal Administrative Court
violated his right to be heard by rejecting, without examining the
merits of his case, his complaint against the refusal of leave to
appeal on points of law. The Federal Administrative Court was biased -
it initially fixed an unreasonable value of claim.
THE LAW
1. In so far as the applicant complains of his obligatory membership
in the social insurance institution his complaint is incompatible with
the Convention ratione materiae as by virtue of its legal nature and
its public functions the insurance institution in question cannot be
considered as an association within the meaning of Article 11 (art. 11)
of the Convention (cf. No. 6054/73, Dec. 6.7.77, D.R. 9, p. 5; Eur.
Court H.R., Lecomte, Van Leuven and De Meyere judgment of 23 June 1981,
Series A No. 43, p. 26 et seq., paras 63-65).
It follows that this complaint is inadmissible under Article 27
para. 2 (art. 27-2) of the Convention.
2. In so far as the applicant complains that his personal request
to be exempted from membership was rejected by the German courts the
Commission points out that it is not competent to examine whether the
domestic courts committed errors of law or fact in deciding upon the
applicant's request except where such errors might have violated
Convention rights.
3. In this conection the Commission notes the applicant's procedural
complaints. It has examined these complaints under Article 6 para. 1
(art. 6-1) of the Convention which guarantees a fair hearing by an
impartial tribunal in the determination of civil rights. However,
assuming that this provision applies, the Commission finds no
indication that substantial and relevant facts or legal arguments
submitted by him in the domestic proceedings have arbitrarily been
disregarded by the competent courts. The Federal Constitutional Court
has rightly pointed out that facts or arguments which for reasons of
formal or substantive law are irrelevant can be disregarded by the
courts. There is furthermore nothing to show that the Federal
Administrative Court arbitrarily rejected the applicant's complaint
about denial of leave to appeal. The court states reasons for its
decision and these reasons are based on jurisprudence. The applicant
has not shown that these reasons are in any way incompatible with
domestic law or arbitrary in view of the particularities of his case.
There is consequently no appearance of a violation of the rights
guaranteed by Article 6 (art. 6) of the Convention in this respect.
As far as the applicant alleges that the Federal Administrative
Court showed bias in fixing a high value of claim, the Commission notes
that the court itself corrected its decision and reduced the value of
claim. These circumstances in no way disclose any appearance of bias.
It follows that this complaint must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber Acting President of the First Chamber
(M. de SALVIA) (F. ERMACORA)
Full & Egal Universal Law Academy