FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 31102/04
by Eberhard RITTER
against Germany
The European Court of Human Rights (Fifth Section), sitting on 20 November 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 25 August 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Eberhard Ritter, is a German national who was born
in 1941 and lives in Berlin. He was represented before the Court by
Mr K. - H. Christoph, a lawyer practising in Berlin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
The applicant was a citizen of the German Democratic Republic (“GDR”) and is an engineer by profession. He inter alia contributed to the optional supplementary pension system and an additional pension scheme open to engineers (see “Relevant domestic law” below).
2. First set of proceedings
On 18 February 1998 the Federal Insurance Fund for Salaried Employees (Bundesversicherungsanstalt für Angestellte – hereinafter referred to as “Insurance Fund”) provided the applicant with information as to his contribution periods and the basis for the calculation of his pension (Kontenklärungsbescheid und Rentenauskunft).
On 12 March 1998 he lodged an objection. On 14 April 2000 the Insurance Fund issued a new decision taking into account additional contribution periods, thereby partially quashing the initial decision. The applicant then supplemented his pending objection, which was finally rejected on 30 March 2001.
Subsequently, he brought an action in the Berlin Social Court contesting that his contributions to the GDR optional supplementary pension scheme were only taken into account up to the social security contribution ceiling for the Federal Republic of Germany (Beitragsbemessungsgrenze - West) according to the provisions of Social Code No. 6. However, the applicant did not contest the determination of his contribution periods.
On 17 December 2001 the Social Court rejected his action.
On 18 June 2003 the Social Court of Appeal rejected the applicant’s appeal holding that the application of the social security contribution ceiling could only be the subject of proceedings dealing with the actual amount of pension whereas the present proceedings only concerned the establishment of the periods during which contributions had been made. The court refused the applicant leave to appeal on points of law.
On 9 December 2003 the Federal Social Court rejected the applicant’s complaint.
On 25 February 2004 the Federal Constitutional Court refused to admit the applicant’s complaint.
3. Second set of proceedings
On 17 January 2005 the Insurance Fund determined the amount of the applicant’s pension. On 1 March 2005 the applicant retired.
On 23 March 2005 the Federal Insurance Fund rejected the applicant’s objection. He then brought an action in the Berlin Social Court and the proceedings appear to be still pending.
B. Relevant domestic law
1. The GDR pension system
In the GDR there were a compulsory general pension scheme (Sozialpflichtversicherung), an optional supplementary pension scheme (Freiwillige Zusatzrentenversicherung) and furthermore additional pension schemes for certain professions or groups (Zusatz- und Sonderversorgungs-systeme), which led to a considerable increase of the amount of pension.
For a more detailed overview of the GDR pension system, its transfer to the Federal Republic of Germany (“FRG”) and the calculation of pensions see the Court’s recent decision in the case of Klose and Others (see Klose and Others v. Germany (dec.), no. 12923/03, 25 September 2007).
2. The Social Courts Act
Section 88 of the Social Courts Act provides:
“(1) Where no decision has been rendered regarding an application for the performance of an administrative act within a reasonable time and without sufficient grounds, an action in court shall be admissible six months after an application for the performance of the administrative act has been submitted. (...)
(2) The same applies if no decision upon an objection was rendered providing that a three-month time-limit shall apply as a reasonable time limit.”
COMPLAINTS
1. The applicant complained about the amount of his pension and challenged the impugned decisions under Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention.
2. Under Article 6 of the Convention the applicant submitted that the length of the proceedings had been excessive.
3. The applicant furthermore complained that the vice-president of the Federal Constitutional Court had been biased and should have withdrawn from his case.
THE LAW
1. Insofar as the applicant complained about the amount of his pension, this was not the issue of the impugned decisions rendered in the first set of proceedings. Those only dealt with the determination of the periods of contribution to the optional supplementary pension scheme, which, as such, were not challenged by the applicant. In light of the domestic courts’ reasoning the applicant’s complaints under Article 1, taken alone and in conjunction with Article 14 of the Convention appear to be manifestly ill-founded.
The proceedings which actually dealt with the amount of the applicant’s pension, namely the second set of proceedings, are still pending and his complaints are therefore premature.
Thus, this part of the application should be rejected according to Article 35 §§ 1, 3 and 4 of the Convention.
2. The applicant further complained about the length of the two sets of proceedings. He relied on Article 6 § 1 of the Convention, which as far as relevant provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The periods to be taken into account began with lodging the objections against the initial decisions by the administrative authorities (see Klasen v. Germany, no. 75204/01, § 29, 5 October 2006).
The first set of proceedings therefore began on 12 March 1998 and ended with the decision of the Federal Constitutional Court of 25 February 2004.
The overall length of the proceedings was thus about six years for five instances, which appears to be in accordance with the “reasonable time” requirement of Article 6 of the Convention, in particular in view of the unique context of German Unification (see Klose and Others, cited above).
Yet the proceedings relating to the applicant’s objection alone were pending before the Insurance Fund for three years, but the Insurance Fund rendered a new decision during that time, which partially quashed the initial decision. Furthermore, the Court notes that the applicant did not bring an action in court challenging the Insurance Fund’s inactivity according to section 88 of the Social Courts Act (Sozialgerichtsgesetz). Pursuant to that provision an individual may bring an action in the Social Court if the authority fails to render a decision within a reasonable time without reason. If deemed admissible, the court orders the authority to issue a decision.
The Court considers that an action pursuant to section 88 of the Social Courts Act constitutes in principle an effective remedy as regards a complaint about the length of proceedings. Hence the applicant did not avail himself of an effective remedy to expedite the proceedings.
As regards the proceedings before the Social Court of Appeal the Court observes that the proceedings were pending for eighteen months. However, the subsequent decisions by the Federal Social Court and the Federal Constitutional Court were rendered within six and three months respectively.
Having regard to the above considerations and taking into account that the overall length of proceedings did not yet exceed what could be regarded as reasonable under those circumstances, the Court finds that the length of proceedings before the Insurance Fund and the Social Court of Appeal was in accordance with the “reasonable time” requirement of Article 6 of the Convention.
In respect of the second set of proceedings it is unknown when the applicant lodged his objection but it is safe to assume that he did so within the statutory time-limit of one month after the Insurance Fund’s decision of 17 January 2005, i. e. February 2005. Therefore the proceedings have been pending for about two years and eight months for two instances, which is not excessive.
Hence the applicant’s complaint is manifestly ill-founded and must be rejected pursuant to Article 35 § 3 and 4 of the Convention.
3. As far as the applicant contested the participation of the vice-president of the Federal Constitutional Court in his case, he did not demonstrate that he challenged him for bias either before or after the decision. Therefore, the applicant did not demonstrate that he exhausted domestic remedies.
It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy