Resolution CM/ResDH(2012)110[1]
Zeman against Austria
Execution of the judgments of the European Court of Human Rights
(Application No. 23960/02, judgment of 29/06/2006, final on 29/09/2006;
Judgment on just satisfaction of 10/01/2008, final on 10/04/2008)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the discriminatory treatment of the applicant in connection with his pension (violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1) (see details in Appendix);
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent State, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2012)110
Information about the measures to comply with the judgments
in the case of Zeman against Austria
Introductory case summary
The case concerns the discriminatory treatment of the applicant as a result of the application of the amended Pension and Pension Allowance Act. According to the provisions of this Act, widowers were entitled to receive 40% of the pension their deceased wife had acquired before January 1995 while widows were entitled to 60% of the pension of their deceased husband. The Court held that this distinction was not objectively justified under the Act (violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1).
I.Payment of just satisfaction and individual measures
Following the Court’s principal judgment of 29/06/2006, the Austrian authorities and the applicant reached a friendly settlement covering all the applicant’s claims in respect of his widower pension, which was confirmed by the Court in its judgment on Article 41, delivered on 10/02/2008. The Austrian authorities submitted confirmation that the amounts due have been paid to the applicant, as follows: Since January 2007 the applicant has been receiving a widower’s pension in the amount of 60% of the pension which his wife would have received. These payments are being transmitted in advance on the first day of each month. The amount for the pension due since 1 January 1995 was paid to the applicant in January 2007 (payments for the period between 1 January 1995 and 31 December 2005 in the amount of 51 700,96 Euro were referred to as “Pensionsrückzahlung Vorjahr“; payments regarding the period between 1 January 2006 and 31 December 2009 were referred to as „Nachzahlung“, „Versorgungsgenuss“, „Versorgungsgenusszulage“, etc.). Interest and procedural costs in the amount of 19 858,21 Euro were transmitted for technical reasons together with the regular pension payments for the applicant in January 2007.
II.General measures
The Austrian authorities informed that the present case was a solitary incident due to the transitional arrangements of the Pension and Pension Allowance Act. No further complaints have been received by the relevant authorities for 17 years now. If such complaints were to occur, the Austrian authorities undertake to apply the relevant transitional provisions in line with the Court’s judgment in the present case.
The judgment was published in ÖJZ 2007, p. 210 and Newsletter Menschenrechte 06/3/15, available online at . It was disseminated to the Federal Chancellery (Bundeskanzleramt/Verfassungsdienst) and the city of Vienna (Magistratdirektion Geschäftsbereich Recht; Berufungssenat der Stadt Wien) on 23/01/2009. A regular circular note of 11/11/ 2006 was sent to the Parliament, the Federal Ministries, the Governments of the Länder, the Liaison Office of Länder with Federal authorities, the Constitutional Court, the Administrative Court and the Supreme Court and also published on the website of the Federal Chancellery under .
III.Conclusions of the respondent State
The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 26 September 2012 at the 1150th Meeting of the Ministers’ Deputies.
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