AS TO THE ADMISSIBILITY OF
Application No. 24872/94
by Dietmar PAUGER
against Austria
The European Commission of Human Rights sitting in private on
9 January 1995, the following members being present:
MM. H. DANELIUS, Acting President
C.L. ROZAKIS
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 April 1994 by
Dietmar PAUGER against Austria and registered on 10 August 1994 under
file No. 24872/94;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, an Austrian citizen born in 1941, is a university
professor residing in Graz.
A. Particular circumstances of the case
1. On 23 June 1984 the applicant's first wife died. She had been
employed as a school teacher in the civil service of the Region of
Styria.
Since November 1985 the applicant is entitled to a widower's
pension, calculated on the basis of the transitory provisions of part
II para. 2 of the 8th Amendment to the Pensions Act (Pensionsgesetz),
which until January 1995 only provides for a reduced widower's pension.
In the course of proceedings for the granting of his widower's
pension, the applicant lodged a complaint with the Constitutional Court
(Verfassungsgerichtshof) in which he complained that the transitory
provisions of part II para. 2 of the 8th Amendment to the Pensions Act
were discriminatory and, therefore, unconstitutional. On
3 October 1989 the Constitutional Court dismissed this complaint. The
Constitutional Court held that the transitory arrangements reflected
a continuing change in society regarding equality of sexes and, thus,
were not contrary to the principle of equality.
2. With regard to the above proceedings, the applicant has already
introduced an application to the Commission (No. 16717/90), complaining
under Article 6 para. 1 of the Convention about the length and alleged
unfairness of the proceedings regarding his widower's pension.
In connection with the aforementioned proceedings, the applicant
also introduced a communication to the Human Rights Committee under
Article 26 of the International Covenant on Civil and Political Rights,
according to which all persons are equal before the law and are
entitled without any discrimination to the equal protection of the law.
In his communication he complained that the transitory provisions which
only entitled men during the transitory period to a reduced widower's
pension were discriminatory. On 30 March 1992 the Human Rights
Committee found a violation of Article 26 of the International Covenant
on Civil and Political Rights. It held that the granting of a reduced
widower's pension to the applicant, calculated on the basis of the
transitory provisions of the 8th Amendment to the Pensions Act,
constituted discrimination against the applicant on the ground of sex.
3. On 4 October 1991 the applicant remarried.
On 23 October 1991 the Styria Regional Education Council (Landes-
schulrat), pursuant to Section 21 para. 3 of the Pensions Act, commuted
the applicant's right to a widower's pension and granted a one-off
payment in the amount of AS 423,059. It found that, as the applicant
had remarried, he was entitled to a one-off payment in the amount of
70 monthly pension payments. As a basis for the calculation, the
Education Council took the pension payments the applicant received at
the time of his remarriage, i.e. two thirds of his full pension right.
On 8 November 1991 the applicant appealed against this decision.
He submitted that the calculation of the one-off payment had to be
based on his full pension right and not on the reduced payments he
received. On 9 January 1992 the Styria Regional Government
(Landesregierung) dismissed his appeal.
On 28 September 1993 the Administrative Court (Verwaltungs-
gerichtshof), upon a complaint by the applicant, quashed the Regional
Government's decision. The Administrative Court found that the one-off
payment had to be seen as a single payment of the monthly instalments
the applicant would receive in the years following his remarriage.
Therefore, the development of his pension right during this period had
to be taken into account. As the applicant would have been entitled
from 1 January 1995 onwards to his full pension right, the 70
instalments had to be calculated differently according to the dates of
reference. Therefore, the instalments which would correspond to the
pension payments before January 1995 had to be calculated on the basis
of his reduced pension right and the remainder on the basis of his full
pension right.
On 13 December 1993 the Regional Government, following the
Administrative Court's decision, quashed the Regional Education
Council's decision of 23 October 1991.
On 5 January 1994 the Regional Education Council decided again
on the applicant's request, this time calculating the one-off payment
in accordance with the Administrative Court's decision. Thus, the one-
off payment was raised to AS 500,612.
B. Relevant domestic law
Section 14 para. 1 of the Pensions Act, as amended by the 8th
Amendment to the Pensions Act, Federal Law Gazette 426/1985
(8. Pensionsgesetznovelle, BGBl. 426/1985), reads as follows:
"The surviving spouse of a civil servant is entitled to a monthly
pension if the civil servant himself had such a claim on the day
of his death, or if he would have had such a claim upon
retirement on that day."
Section 21 para. 3 of the Pensions Act, as amended by the 8th
Amendment to the Pensions Act, Federal Law Gazette 426/1985, reads as
follows:
"The surviving spouse of a civil servant who remarries is
entitled to a one-off payment replacing his pension right, in the
amount of seventy monthly pension payments to which he or she is
entitled at the time of the new marriage."
Part II para. 2 of the 8th Amendment to the Pensions Act reads
as follows:
"The monthly instalments to which the widower or the former
husband are entitled, are
- from 1 March 1985 onwards the amount of one third;
- from 1 January 1989 onwards the amount of two thirds;
- and from 1 January 1995 onwards the full amount.
If the widower or former husband is incapable of gainful
employment and indigent, this restriction does not apply."
COMPLAINTS
The applicant complains about discrimination against him on the
ground of sex in that the Austrian authorities only granted him a
reduced one-off payment replacing his right to a widower's pension,
calculated in accordance with the transitory provisions of part II
para. 2 of the 8th Amendment to the Pensions Act, whereas widows would
receive a full one-off payment. He invokes Article 6 para. 1 of the
Convention and Article 1 of Protocol No. 1, both in conjunction with
Article 14 of the Convention.
THE LAW
The applicant complains of discrimination on the ground of sex
in that he was only granted a reduced one-off payment replacing his
right to a widower's pension, whereas women in such a situation would
receive a full one-off payment. He invokes Article 6 para. 1
(Art. 6-1) of the Convention and Article 1 of Protocol No. 1 (P1-1),
both in conjunction with Article 14 (Art. 6-1+14, P1-1+14) of the
Convention. These provisions respectively guarantee, inter alia, the
right to a fair hearing in the determination of civil rights, the right
to the peaceful enjoyment of possessions and freedom from
discrimination in the securement of Convention rights.
The Commission notes that the Human Rights Committee gave a
decision on 30 March 1992 in relation to a communication made by the
applicant. The Commission has to examine whether, pursuant to Article
27 para. 1 (b) (Art. 27-1-b) of the Convention, it is prevented from
dealing with the present application because of that decision.
Article 27 para. 1 (b) (Art. 27-1-b) of the Convention provides
as follows:
"The Commission shall not deal with any petition submitted
under Article 25 (Art. 25) which: ...
(b) is substantially the same as a matter which has already
been examined by the Commission or has already been
submitted to another procedure of international
investigation or settlement and if it contains no relevant
new information."
The Commission recalls that it is against the letter and spirit
of the Convention if the same matter is simultaneously submitted to two
international institutions. Article 27 para. 1 (b) (Art. 27-1-b) of
the Convention aims at avoiding the plurality of international
procedures concerning the same case. In considering this issue, the
Commission needs to verify whether the applications to the different
institutions concern substantially the same person, facts and
complaints (cf. No. 11603/85, Dec. 20.1.87, D.R. 50, p. 228 and 251;
No. 17512/90, Decs. 30.6.92 and 6.7.92, and No. 16358/90,
Dec. 12.10.92, D.R. 73).
The Commission notes that upon a complaint lodged by the
applicant in the course of the proceedings for the grant of a widower's
pension, the Constitutional Court on 3 October 1989 determined the
issue of the constitutionality of the transitory provisions of the 8th
Amendment to the Pensions Act. The Constitutional Court found that
these provisions, which led to the grant of a reduced widower's pension
to the applicant, were not discriminatory and were thus in accordance
with the Austrian Constitution.
The Commission notes further that thereupon the applicant lodged
a communication with the Human Rights Committee, complaining under
Article 26 of the International Covenant on Civil and Political Rights
that the transitory provisions were discriminatory. On 30 March 1992
the Human Rights Committee found a violation of Article 26 of the
International Covenant on Civil and Political Rights. It held that the
grant of a reduced widower's pension to the applicant, calculated on
the basis of the transitory provisions, constituted discrimination
against the applicant on the ground of sex.
The Commission observes that while the applicant's communication
to the Human Rights Committee related to discrimination with regard to
his entitlement to a widower's pension, his present application to the
Commission concerns discrimination regarding a one-off payment
replacing this widower's pension, calculated in accordance with the
transitory provisions of the 8th Amendment to the Pensions Act.
Nevertheless, the Commission finds that the applicant's
communication to the Human Rights Committee and his present application
concern essentially the same issue, namely discrimination, both as
regards his claim to a widower's pension and as regards the application
of transitory provisions to his pension right.
It follows that the Commission is prevented from dealing with the
present application by virtue of Article 27 para. 1 (b) (Art. 27-1-b)
of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (H. DANELIUS)
Full & Egal Universal Law Academy