AS TO THE ADMISSIBILITY OF
Application No. 31067/96
by Anton Joseph NIEMAN
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the 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 27 November 1995
by Anton Joseph NIEMAN against the Netherlands and registered on
19 April 1996 under file No. 31067/96;
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 Dutch national, born in 1932, and resides in
Voorburg, the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Between 23 October 1958 and 1 May 1972, the applicant was
employed at the Ministry of Defence. As from 1 May 1972, the applicant
was found incapacitated for work and was granted an invalidity pension
under the General Civil Service Pension Act (Algemene Burgerlijke
Pensioenwet).
On 1 July 1979, the Act of 11 April 1979 containing an amendment
to the General Civil Service Pension Act entered into force setting a
specified minimum level for invalidity pensions granted under the
General Civil Service Pension Act.
Pursuant to Article XIII of the Act of 11 April 1979, published
in the Official Gazette (Staatsblad) nr. 304, persons whose invalidity
pension was lower than this guaranteed minimum level could file a
written request for a recalculation of their benefits in order to bring
their pensions in conformity with the new rules. The eligible persons
were informed of this possibility by a circular letter nr. 1179.115 of
October 1979.
Although the applicant's benefits were lower than the guaranteed
minimum level, he did not apply for a recalculation of his pension.
In May 1984, following an investigation, it had appeared to the
direction of the General Civil Service Pension Fund (Algemeen
Burgerlijk Pensioenfonds, hereinafter referred to "ABP") that a large
number of persons eligible for a recalculation had failed to submit a
request to this end. It was decided to make an ex officio recalculation
of the pensions of those persons who had not made such a request and
to grant that recalculation retroactive effect as from 1 May 1983.
By letter of 17 June 1985, the ABP informed the applicant that
his pension had been recalculated ex officio and that this
recalculation would be applied with retroactive effect as from
1 May 1983.
On 13 March 1986, the applicant's brother, a Dutch diplomat at
that time working in Ankara who - in view of the applicant's
difficulties to manage his financial and administrative affairs -
helped the applicant in managing such matters, filed a request on
behalf of the applicant to the ABP. He requested the ABP to review the
recalculation of his brother's pension to the effect that it be granted
retroactive effect as from 1 July 1979. It was submitted that it did
not appear from the applicant's administration that he had ever been
informed before 17 June 1985 that he could apply for a recalculation
of his pension.
On 13 June 1986, the ABP legal department requested the ABP
medical department to verify whether the applicant had been incapable,
between October 1979 and January 1980, to file a request for a
recalculation of his invalidity pension. According to the ABP medical
department, the applicant had not been incapable to file such a
request.
In a letter dated 16 September 1986, sent on 27 October 1986, the
ABP informed the applicant that the request of 13 March 1986 was
rejected. The applicant filed an objection (bezwaar) against this
decision on 4 December 1986 with the ABP Supervisory Board (Raad van
Toezicht van het Algemeen Burgerlijk Pensioenfonds).
By decision of 30 December 1987, the ABP Supervisory Board
declared the objection inadmissible for having been lodged out of time.
The applicant filed an appeal with the Civil Service Tribunal
(Ambtenarengerecht).
In the course of the proceedings before the Civil Service
Tribunal, the ABP Board (Bestuur van het Algemeen Burgerlijk Pensioen-
fonds), which had replaced both the direction and Supervisory Board of
the ABP as from 1 January 1988, informed the applicant on
11 August 1989 that it had noted that the decision sent on
27 October 1986 had not been communicated to the applicant's brother.
The ABP Board stated that it had decided to reconsider the challenged
decision, to declare the objection admissible and to examine it on the
merits. It did, however, reject the objection as ill-founded.
The ABP Board noted that a circular letter had been sent to
holders of a pension in October 1979 informing them when a request for
a recalculation could be submitted and that the applicant, although
qualifying for a recalculation, had failed to submit such a written
request.
It further held that it was apparent from the system of the
General Civil Service Pension Act that requests for retroactive effect
could only be granted in cases where a timely request had been made,
whereas in cases where such a request had not been timely made, the
General Civil Service Pension Act foresees a retroactive effect of a
maximum of one year. The ABP Board noted that, in accordance with this
system, Article XIII para. 2 of the Act of 11 April 1979 states that
a request for recalculation which has not been made within one year
following the entry into force of that Act, the recalculation cannot
be granted a retroactive effect of more than one year before the first
day of the month in which the request has been made. The ABP Board,
consequently, held that the decision in the applicant's case was in
conformity with the system and spirit of the General Civil Service
Pension Act.
The ABP Board further noted the opinion of the ABP medical
department that the applicant had not been incapable to manage matters
relating to his pension. Insofar as the applicant had contended that
he had never received the circular letter of October 1979, the ABP
Board stated that it could not be excluded that there were cases where
this letter had not reached its destination. Even assuming it had not
reached the applicant, it could, however, not set aside imperative
statutory rules.
The applicant filed an appeal against the decision of
11 August 1989 with the Civil Service Tribunal, which rejected it as
ill-founded on 30 January 1990. It held, inter alia, that the approach
taken in the applicant's case as regards the limited retroactive effect
was in conformity with decisions taken in a large number of other
similar cases and that these decisions had been accepted on appeal by
the Central Appeals Tribunal (Centrale Raad van Beroep).
The applicant filed an appeal with the Central Appeals Tribunal,
which rejected it on 11 June 1992 and upheld the challenged judgment
of 30 January 1990.
By letter of 19 February 1993, the applicant filed a new request
to the ABP Board to review its decision of 17 June 1985, which was
rejected on 16 September 1993. On the basis of medical statements
submitted, the Board accepted that the applicant had not been capable
to secure his pension interests appropriately between 14 and
23 October 1979, but did not find it established that the applicant
could not have timely requested a recalculation of his pension after
that period. Consequently it concluded that the factual basis of the
decision was correct.
The applicant's appeal to the Regional Court (Arrondissements-
rechtbank) of The Hague was rejected on 9 March 1994. The Regional
Court noted that the merits of the applicant's case had already been
determined in the previous proceedings before the Central Appeals
Tribunal and held that the medical statements the applicant now
submitted could already have been produced in those previous
proceedings.
The applicant's subsequent appeal to the Central Appeals Tribunal
was rejected on 24 May 1995. This decision was communicated to the
applicant on 1 June 1995. The Central Appeals Tribunal held that the
applicant's arguments were the same as those which it had already
examined in proceedings having resulted in the decision of
11 June 1992. It did not consider the medical information submitted by
the applicant to constitute a circumstance referred to in Article S 3
para. 1 (old) of the General Civil Service Pension Act, according to
which a decision taken shall be reviewed when it rests on a factually
incorrect basis or where it appears, after it has been taken, that the
decision should be based on other facts.
COMPLAINTS
The applicant complains that the refusal to grant the
recalculation of his invalidity pension retroactive effect until
1 July 1979 is contrary to Article 1 of Protocol No. 1.
The applicant further complains that the proceedings and refusal
at issue violated his rights under Article 6 of the Convention.
THE LAW
The applicant complains that the proceedings and decision
concerning his request to grant the recalculation of his invalidity
pension retroactive effect until 1 July 1979 violated his rights under
Article 6 (Art. 6) of the Convention and under Article 1 of Protocol
No. 1 (P1-1).
However, the Commission is not required to decide whether or not
the facts submitted by the applicant disclose any appearance of a
violation of the Convention as, in accordance with Article 26 (Art. 26)
of the Convention, the Commission finds that the final decision
regarding the applicant's case was given by the Central Appeals
Tribunal on 11 June 1992, which is more than six months before the date
on which the application was submitted.
This finding is not altered by the subsequent proceedings
instituted by the applicant, as they concerned an unsuccessful request
for a revision of a final decision on the basis of an alleged incorrect
factual basis of the initial refusal.
The Commission recalls that the refusal of an application to
reopen proceedings does not restart the running of the six months'
period referred to in Article 26 (Art. 26) of the Convention, unless
it is successful and actually results in a reopening (cf. No. 23949/94,
Dec. 8.5.94, D.R. 77, p. 140).
It follows that the application must be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy