FIFTH SECTION
DECISION
Application no. 49601/07
Gisela RUDAT
against Germany
The European Court of Human Rights (Fifth Section), sitting on 27 November 2012 as a Committee composed of:
André Potocki, President,
Angelika Nußberger,
Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 7 November 2007,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Gisela Rudat, is a German national, who was born in 1934 and lives in Berlin. She was represented before the Court by Mr Aarne Stüven, a lawyer practising in Berlin. The respondent Government was represented by one of their Agents, Mr. Hans-Jörg Behrens, of the Federal Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1974, the applicant divorced from her first husband.
In 1977, she remarried another man from whom she divorced in 1987.
On 11 November 1996, the applicant filed a request for a surviving dependant’s pension (Hinterbliebenenrente) with regard to her first husband, who had died in October 1996.
On 17 January 1997, the former Federal Insurance Institute for Salaried Employees (Bundesversicherungsanstalt für Angestellte; now Deutsche Rentenversicherung Bund) refused to grant the applicant the requested pension. On 20 May 1997 it dismissed the applicant’s objection.
On 3 September 1999, the Berlin Social Court dismissed the applicant’s complaint. The court held that a divorced spouse was not entitled to a surviving dependant’s pension if she married again in her former husband’s lifetime. In that case, all alimony/pension claims against the former husband ended and were replaced by those against the late husband. While it was true that section 243 § 4 of the Sixth Book of the Social Security Code (Sozialgesetzbuch Sechstes Buch; see “B. Relevant domestic law” below) provided for a surviving dependant’s pension for spouses who remarried but whose new marriage was dissolved or annulled, this provision was only applicable to cases where the surviving spouse remarried after the death of her or his former spouse.
On 28 March 2000, the Berlin Social Court of Appeal dismissed the applicant’s request for legal aid for appeal proceedings on the grounds of no prospects of success. On 11 October 2000, it dismissed the appeal.
On 17 August 2001, the Federal Social Court dismissed the applicant’s complaint about the refusal to grant leave for further appeal as inadmissible.
On 21 September 2001, the applicant lodged a complaint with the Federal Constitutional Court (case no. 1 BvR 1649/01).
On 21 May 2007, the Federal Constitutional Court refused to accept the complaint for adjudication. It held that there were valid reasons for differentiating between divorced women who married again in their former husband’s lifetime and those who did not. The pension for surviving spouses who divorced was meant as a substitute for the loss of alimony payments due to the other former spouse’s death.
B. Relevant domestic law and practice
According to section 243 § 1 – 3 of the Sixth Book of the Social Security Code (Sozialgesetzbuch Sechstes Buch; “SSC”), the surviving spouse is entitled to a surviving dependant’s pension if – inter alia – the marriage was divorced prior to 1 July 1977 and she or he did not remarry.
Section 243 § 4 SSC confers the same pension rights upon surviving spouses who married again, but whose new marriage was dissolved or annulled. Courts apply the provision of section 243 § 4 SSC rather narrowly by limiting it to spouses who have remarried only after their former spouses’ death. They refer to the previous provision in the former Social Insurance Code (Reichsversicherungsordnung) and to the overall spouse’s pension scheme as a reason (see, for example, Federal Social Court, case no. B 5 RJ 39/03, decision of 20 October 2004).
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the length of proceedings before the social courts and the Federal Constitutional Court.
The applicant further complained under Articles 4, 7, 8, 12, 13, 14 and 17 of the Convention that she is not entitled to a surviving dependant’s pensions as she married again in her former husband’s lifetime.
THE LAW
1. The applicant submitted that the length of the proceedings had been excessive and thus in violation of the “reasonable time requirement” of Article 6 § 1, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
On 8 March 2012 the respondent Government submitted a friendly settlement agreement signed by the Government’s Agent on 29 February 2012 and counsel for the applicant on 1 March 2012. The Agent of the Government informed the Court by letter of 8 March 2012 that “[t]he friendly settlement covers all claims regarding a violation of the right to a fair trial within a reasonable time (Art. 6 of the Convention)” and that “[w]ith regard to the remaining complaints (Art. 4, 7, 8, 12, 13, 14 and 17) the applicant wishes to maintain the application”.
On 15 March 2012 the Government submitted the English version of the friendly settlement agreement which reads as follows:
“Friendly settlement with respect to Application no. 49601/07
Rudat v. Federal Republic of Germany
The Federal Republic of Germany, represented by its Agent in the Federal Ministry of Justice, Mohrenstr. 37, 10117 Berlin, and the Applicant Gisela Rudat, hereby conclude the following agreement (friendly settlement) in connection with Application no. 49601/07 filed by the Applicant with the European Court of Human Rights:
1. The Federal Republic of Germany assumes the obligation to pay the Applicant a sum of EUR 7,500.00 in settlement of the non-pecuniary damage arising from the excessive duration of the proceedings and EUR 2,190.20 in settlement of the pecuniary damage arising from the excessive duration of the proceedings, i.e. a total sum of EUR 9,690.20. The copy of the disbursement order of the Federal Office of Justice to the competent federal cash office shall suffice as proof of payment.
2. The amount shall be payable within three months after the European Court of Human Rights has ruled to strike the case from its list on the basis of the friendly settlement in accordance with Article 39 of the Convention in conjunction with Article 75 para. 4 and Article 43 para. 3 of its Rules of Procedure.
3. The parties agree that all claims related to the excessive duration of the proceedings are settled with this agreement.
4. The Agent of the Federal Republic of Germany shall inform the European Court of Human Rights of the present agreement.”
Having regard to the above considerations and the particular circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application insofar as the applicant complained about the length of the proceedings (Article 37 § 1 (c) of the Convention). The Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue examination of the application in this respect (Article 37 § 1 in fine). In view of the above, it is appropriate to strike the case out of the list pursuant to Article 39 § 3 of the Convention.
2. As regards the applicant’s further complaints, the Court finds that, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in respect of the applicant’s complaints about the length of proceedings;
Declares the applicant’s remaining complaints under Articles 4, 7, 8, 12, 13, 14 and 17 of the Convention inadmissible.
Stephen PhillipsAndré Potocki
Deputy RegistrarPresident
Full & Egal Universal Law Academy