EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 20024/92
Gerhard Süssmann
against
Germany
REPORT OF THE COMMISSION
(adopted on 12 April 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. ESTABLISHMENT OF THE FACTS
(paras. 6-30) . . . . . . . . . . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 31-61). . . . . . . . . . . . . . . . . . . . . . . . . . .7
A. Complaint declared admissible
(para. 31). . . . . . . . . . . . . . . . . . . . . . . . . .7
B. Point at issue
(para. 32). . . . . . . . . . . . . . . . . . . . . . . . . .7
C. Article 6 para. 1 of the Convention
(paras. 33-60). . . . . . . . . . . . . . . . . . . . . . . .7
CONCLUSION
(para. 61). . . . . . . . . . . . . . . . . . . . . . . . . 12
APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . . . . . 13
APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . . 19
I. INTRODUCTION
1. The present Report concerns Application No. 20024/92 introduced on
21 May 1992 against the Federal Republic of Germany and registered on
22 May 1992.
The applicant is a German national born in 1916 and resident in
Karlsruhe.
The respondent Government are represented by Mr. J. Meyer-Ladewig,
Ministerialdirigent, of the Federal Ministry of Justice.
2. The complaint relating to the length of proceedings (Article 6 para. 1
of the Convention) was communicated to the Government for observations on
8 September 1993. The remainder of the application was declared
inadmissible. Following an exchange of written observations, the complaint
relating to the length of proceedings was declared admissible on
30 August 1994. The decisions on admissibility are appended to this Report.
3. Having noted that there is no basis upon which a friendly settlement
within the meaning of Article 28 para. 1 (b) of the Convention can be
secured, the Commission, after deliberating, adopted this Report on
12 April 1995, in accordance with Article 31 para. 1 of the Convention, the
following members being present:
MM. C. A. NØRGAARD, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
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
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
B. CONFORTI
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
4. In this Report the Commission states its opinion as to whether the
facts found disclose a violation of the Convention by Germany.
5. The text of the Report is now transmitted to the Committee of
Ministers of the Council of Europe, in accordance with Article 31 para. 2
of the Convention.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
6. The applicant, who was employed in the German civil service, receives
a supplementary pension (Versorgungsrente). Employees in the German civil
service have a supplementary old age insurance, administered by the
Supplementary Pensions Office (Versorgungsanstalt des Bundes und der
Länder), which entitles to a progressive supplementary pension.
7. In March 1982 and again in March 1984 the statutes of this pension
scheme were amended in order to avoid that the amounts paid under the
general old age pension scheme, plus the amounts paid under the
supplementary pension scheme for the civil service, exceeded the last net
salaries of the employees in the civil service. These amendments also
affected cases where insurance contracts already existed or pensions were
paid. On 16 March 1988, the Federal Court of Justice (Bundesgerichtshof),
in leading cases, confirmed the lawfulness of the amendment.
8. On 16 May and 3 June 1988 the Supplementary Pensions Office fixed the
amount of the applicant's supplementary pension in accordance with the
amended statutes.
9. The applicant appealed to the Arbitration Tribunal (Schieds-gericht)
at the Supplementary Pensions Office. Arbitration was provided for under
the statutes of the Supplementary Pensions Office.
10. On 20 February 1987 the Arbitration Tribunal dismissed his appeal.
On 10 March 1989 the High Arbitration Court (Oberschieds-gericht) dismissed
his further appeal.
11. On 11 July 1988 the applicant filed a constitutional complaint
(Verfassungsbeschwerde) with the Federal Constitutional Court
(Bundesverfassungsgericht) concerning the amendments to the statutes of the
Supplementary Pensions Scheme of 1982 and 1984. Subsequently, he made
further submissions. On 4 April 1989 he extended his complaints to the
decision of the High Arbitration Court of 10 March 1989.
12. The applicant's case was assigned to the Second Chamber of the First
Senate at the Federal Constitutional Court. At that time and in the
following two years other complaints on this matter were lodged; 24 cases
raised almost the same issues. The Second Chamber also conducted
proceedings in cases concerning, inter alia, the periods of notice regarding
the dismissal of workers (decided on 30 May 1990), the right of an employer
to lock out workers in the course of strikes (decided on 26 June 1991), and
the constitutional complaints of former civil servants of the German
Democratic Republic regarding a provision of the Unification Treaty
terminating their contracts of employment (decided on 24 April 1991).
13. On 6 November 1991 the Second Chamber, composed of three judges, of
the First Senate at the Federal Constitutional Court refused to admit the
applicant's constitutional complaint on the ground that it did not offer
sufficient prospect of success.
14. The Constitutional Court found that his complaint was inadmissible to
the extent that factual or legal issues could have been raised in
proceedings before the competent lower courts. However, the remainder of
his complaints, in particular about unfairness of the proceedings before the
Federal Court of Justice and about violation of his right to property, were
admissible. The judgments of the Federal Court of Justice of 16 March 1988
had finally determined the factual and legal position, and no further
appeals were necessary in order to exhaust ordinary remedies.
15. As regards the applicant's complaint about unfairness, the
Constitutional Court found no indication that the courts had failed duly to
consider factual submissions as to the amendment of the statutes concerned.
The judgments were mainly based upon two opinions by expert commissions of
September 1975 and November 1983. No further evidence had to be taken.
16. The Constitutional Court further stated that, assuming the pension
rights concerned fell within the scope of the constitutional right to
property, there was no indication of a violation of this right. The pension
rights could be reduced by amending the statute under the rules of private
law.
17. The Constitutional Court noted that the Federal Court of Justice had
found the pensions under the scheme managed by the Supplementary Pensions
Office to be governed by private law. This appreciation had not generally
been disputed by the applicant. The Constitutional Court further noted that
the Federal Court of Justice regarded the pension insurance as insurance for
a group of persons (Gruppenversicherung), the employer being the insured and
the employees the beneficiaries. The Federal Court of Justice, examining
the compliance of the amendment with the employees' interests, had
considered that the amendments had, in reaction to a socially intolerable
development, remedied a serious interference with the purpose of the
supplementary pension. It served the consolidation of all old age pension
schemes and was based upon a decision of principle taken by employers and
employed. The wide margin of appreciation in this context had not been
overstepped.
18. The Constitutional Court held that these findings of the Federal Court
of Justice did not disclose any violation of constitutional rights. In
particular the interests of the individual employees as beneficiaries could
reasonably be protected by the professional organisations representing them.
Having regard to the general interest in a solid system of old age pensions
which could be financed, a collective safeguard of the employees' interests
appeared appropriate. The deviation from previous case-law of the Federal
Court of Justice regarding the employee as an insured person under the
statutes in question did not amount to a violation of property rights as the
case-law did not have any binding effect.
19. The Constitutional Court also found that the applicant's doubts as to
the impartiality of the judges at the arbitration courts were irrelevant,
as they were not part of the judiciary, but arbitration boards under private
law.
20. The decision was served on 5 December 1991.
B. The relevant domestic law
21. According to Article 93 para. 1 (4a) of the German Basic Law
(Grundgesetz), the Federal Constitutional Court (Bundes-verfassungsgericht)
shall decide, inter alia, on constitutional complaints
(Verfassungsbeschwerden), which may be lodged by any person claiming to be
the victim of a violation by a public authority of one of the basic rights
(Grundrechte) or of one of the rights under Article 20 para. 4, Articles 33,
38, 101, 103, 104 of the Basic Law.
22. The constitution and procedure of the Federal Constitutional Court is
regulated by the Federal Constitutional Court Act (Gesetz über das
Bundesverfassungsgericht).
23. SS. 90 to 96 of the Federal Constitutional Court Act concern the
above-mentioned constitutional complaint proceedings. At the relevant time,
the Constitutional Court Act 1985 was in force; the rules as set out in the
following paragraphs refer to this version of the law.
24. S. 90 para. 1 defines the persons entitled to lodge a constitutional
complaint. Paragraph 2 requires complainants to exhaust, in general, the
available ordinary remedies; the Constitutional Court may, in exceptional
circumstances, decide upon a constitutional complaint before such remedies
have been exhausted.
25. A constitutional complaint has to be lodged in writing, indicating the
right allegedly violated and the responsible public authority (S. 92). The
constitutional complaint has to be lodged within one month from the service
of, or information about, the decision concerned; in case of a
constitutional complaint about a law or about another act of a public
authority against which there is no recourse to a court, the constitutional
complaint has to be lodged within one year from the entry into force of that
law or act (S. 93).
26. According to S. 93a, the constitutional complaint needs to be admitted
for examination. S. 93b para. 1 provides that the Chamber, composed of
three judges, can unanimously refuse to admit a constitutional complaint,
if the complainant failed to pay the advance court fee, if the complaint is
inadmissible or does not, for other reasons, offer sufficient prospect of
success, or if the Senate will probably not admit the complaint under
S. 93c, second sentence. There is no appeal against the decision. The
Chamber can, unanimously, decide upon complaints which are manifestly well-
founded because the relevant legal questions have already been decided by
the Federal Constitutional Court (S. 93c para. 2). The Chamber decides in
written proceedings; and the reasoning of a decision not to admit a
constitutional complaint may be limited to referring to the legal aspect
decisive for not admitting it.
27. Where the Chamber has not decided upon the question of either
admitting or refusing to admit a constitutional complaint, the Senate
decides and admits the complaint if at least two judges consider that the
decision is likely to clarify a question of constitutional law, or if
otherwise the complainant would suffer a grave and irreparable prejudice
(S. 93c).
28. S. 94 regulates the rights of third parties to be heard in the
constitutional complaint proceedings.
29. S. 95 provides in particular that, in case the constitutional
complaint is successful, the reasoning of the decision has to contain a
reference to the provision of the Basic Law which was violated and to the
public act which constituted the said violation. Unconstitutional decisions
are quashed by the Federal Constitutional Court, and a law will be declared
void.
30. The Federal Constitutional Court Act was subsequently amended in order
to discharge the Federal Constitutional Court; the amendment of 1993 (entry
into force on 11 August 1993) restructured in particular the proceedings
regarding constitutional complaints (S. 93a to S. 93d of the Constitutional
Court Act 1993).
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
31. The Commission has declared admissible the applicant's complaint that
his case was not heard within a reasonable time by the Federal
Constitutional Court.
B. Point at issue
32. The only point at issue is whether the length of the proceedings
complained of exceeded the "reasonable time" referred to in Article 6
para. 1 (Art. 6-1) of the Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
33. The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention
provides as follows :
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by (a)
... tribunal ..."
34. The applicant, a retired employee from the German civil service,
complains about the length of proceedings before the Federal Constitutional
Court. These proceedings related to his constitutional complaint about the
reduction of his supplementary pension following amendments to a pension
scheme for employees in the civil service. The Second Chamber of the First
Senate at the Federal Constitutional Court refused to admit this complaint
on the ground that it did not offer sufficient prospect of success.
a. Applicability of Article 6 para. 1 (Art. 6-1)
35. According to the applicant, the length of his constitutional complaint
proceedings before the Federal Constitutional Court falls to be examined
under Article 6 para. 1 (Art. 6-1).
36. The Government submit that Article 6 para. 1 (Art. 6-1) does not apply
to the constitutional complaint proceedings before the Federal
Constitutional Court.
37. They consider that the criterion applied in the case-law of the
European Court of Human Rights, namely whether or not the Constitutional
Court's decision was capable of affecting the outcome of the case which has
been litigated before the ordinary courts, is inappropriate, as there was
no conceivable case in which the Constitutional Court's decision had no
effect on the proceedings before the ordinary courts. The Constitutional
Court's proceedings would thus always be covered by Article 6 para. 1
(Art. 6-1).
38. The Government are of the opinion that proceedings before the Federal
Constitutional Court, taking into account its particular position and tasks
under the German Basic Law, cannot be regarded as relating to a dispute over
"civil rights and obligations". Rather the Constitutional Court decided on
the constitutional aspects of a case and not on the merits of the dispute
between the parties.
39. The Government submit in particular that the obligation to decide
within a reasonable time could not be applied to the constitutional
complaint proceedings. Though normally such complaints, if they were
inadmissible or did not offer sufficient prospect of success, were dealt
with within some weeks or months, they could be delayed because of the
workload of the Federal Constitutional Court, because of the joinder of
similar cases or the priority to be given to more important cases. The
Government also point at the far-reaching consequences for the functioning
and the structure of the Federal Constitutional Court, should Article 6
(Art. 6) be regarded as applicable.
40. The Commission recalls that Article 6 para. 1 (Art. 6-1) applies to
"all proceedings the result of which is decisive for private rights and
obligations" and that "the character of the legislation which governs how
the matter is to be determined (civil, commercial, administrative law, etc.)
and that of the authority which is invested with jurisdiction in the matter
(ordinary court, administrative body, etc.) are therefore of little
consequence" (Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A
no. 13, p. 39, para. 94; as recent authority Stran Greek Refineries and
Stratis Andreadis judgment of 9 December 1994, para. 39, to be published in
Series A no. 301-B).
41. The applicant's complaint under Article 6 para. 1 (Art. 6-1) concerns
solely the length of his constitutional complaint proceedings before the
Federal Constitutional Court. The applicant, without having brought his
case before the civil courts, was in a position directly to lodge his
constitutional complaint after decisions by arbitration tribunals.
Moreover, in a leading case, the Federal Court of Justice had confirmed the
statutory amendments resulting in a reduction of the civil servants' pension
rights under the Supplementary Pension Scheme. The applicant's proceedings
before the Federal Constitutional Court have to be seen against this
background of disputes concerning the entitlement to a particular amount of
pension, i.e. pecuniary claims, and are as such of a civil nature (cf.
Eur. Court H.R., Francesco Lombardo judgment of 26 November 1992, Series A
no. 249-B, pp. 26-27, para. 17; Giancarlo Lombardo judgment of
26 November 1992, Series A no. 249-C, p. 42, para. 16).
42. For the purpose of calculating the relevant period when the reasonable
length of civil proceedings is at issue, proceedings in a Constitutional
Court have been taken into account where the result of such proceedings is
capable of affecting the outcome of the proceedings before the ordinary
courts (Eur. Court H.R., Ruiz-Mateos judgment of 23 June 1993, Series A
no. 262, pp. 19-20, para. 35-37, with further references, as well as the
Court's statement, at p. 19, para. 35, abandoning the approach taken in the
Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para. 48).
43. The Commission finds that these considerations also apply in the
present case, where the constitutional proceedings were initiated by the
applicant following an arbitration in his own case and decisions of the
Federal Court of Justice in leading cases. Invoking inter alia his
constitutional right of property, the applicant complained before the
Federal Constitutional Court in particular about unconstitutionality of the
statutory amendments to the Supplementary Pension Scheme, and of the
decisions based thereupon. The Commission observes that, in case of success
of a constitutional complaint, the Federal Constitutional Court, in
accordance with S. 95 of the Federal Constitutional Court Act, does not only
state the violation of the Basic Law and indicate the responsible public
authority, but also has the power to quash the decision, or declare void the
law, complained of.
44. The Commission has next considered that the proceedings at issue
solely related to the preliminary examination, under the relevant provisions
of the Federal Constitutional Court Act 1985 (in force in the period
concerned), of whether the applicant's constitutional complaint fulfilled
the conditions to be admitted for a further examination (see above,
paragraphs 26 and 27). According to S. 93b of the Constitutional Court Act
1985, the Chamber had to decide at this stage whether any request for
payment of an advance court fee had been complied with, whether the
complaint was inadmissible or did not, for other reasons, offer sufficient
prospect of success, and finally whether or not the decision was likely to
clarify a question of constitutional law, or whether the complainant would
suffer a grave and irreparable prejudice in case his complaint was not
admitted. The above provision also entitled the Chamber to decide itself
that the complaints were well-founded in the light of the existing case-law.
45. In this context the Commission recalls that the Convention does not
compel the Contracting States to set up courts of appeal or of cassation
(cf. Eur. Court H.R., Delcourt judgment of 17 February 1970, Series A no.
11, p. 15, para. 25; Monnell and Morris judgment of 2 March 1987, Series A
no. 115, p. 21, para. 54), or grant persons under their jurisdiction a
constitutional appeal in addition to the appeals available before the
ordinary courts (No. 6916/75, Dec. 12.3.76, D.R. 6 p. 101). A State which
institutes such courts is required to ensure that persons amenable to the
law shall enjoy before these courts the fundamental guarantees contained in
Article 6 (Art. 6) (Eur. Court H.R., Delcourt judgment, loc. cit.; Monnell
and Morris judgment, loc. cit.). However, the State concerned is entitled
to lay down the provisions by which the appeal shall be governed and fix the
conditions under which it may be brought (No. 6916/75, Dec. 12.3.76, loc.
cit.; No. 11826/85, Dec. 9.5.89, D.R. 61 p. 138).
46. The Commission observes that Article 6 (Art. 6) has been applied to
leave-to-appeal proceedings in criminal cases where the issue to be decided
was whether the applicant had demonstrated the existence of arguable grounds
which would justify hearing an appeal. If, in these cases, the grounds
pleaded were in law legitimate grounds for an appeal and if they merited
further argument or consideration, leave was given; if one or other of these
conditions were lacking, leave was refused (cf. Eur. Court H.R., Monnell and
Morris judgment, loc. cit., pp. 21-22, paras. 54-57).
47. As regards disputes concerning civil rights and obligations, Article 6
(Art. 6) was considered not to apply to proceedings before a Supreme Court
or a Constitutional Court, which determines, in a preliminary examination
and without entering on the merits of the case, whether or not the
conditions for granting leave to appeal have been fulfilled (No. 6916/75,
Dec. 12.3.76, loc. cit.; No. 11826/85, Dec. 9.5.89, loc. cit. with further
reference). In this respect, the Commission also recalls that Article 6
(Art. 6) is generally not applicable where a procedural obstacle did not
allow an examination on the merits (cf. No. 10865/84, Dec. 12.5.86, D.R. 47
p. 188, with further references).
48. In the present case, the applicant's constitutional complaint was, in
substantial parts, not regarded as inadmissible due to a procedural mistake.
49. The decision of the Second Chamber regarding the applicant's
constitutional complaint was based on the consideration that it did not
offer sufficient prospect of success, which constitutes an element of
admissibility under the relevant provisions of the Federal Constitutional
Court Act. In reaching this conclusion the Second Chamber extended its
preliminary examination of the case to the merits of the applicant's
submissions and arguments. Indeed, the Chamber addressed in detail various
substantial issues raised by the applicant, inter alia, whether or not the
Federal Court of Justice, in confirming the lawfulness of the changes in the
supplementary pensions statutes, had disregarded the constitutional right
to property.
50. In these circumstances, the proceedings in question fall within the
scope of Article 6 para. 1 (Art. 6-1) of the Convention.
b. Compliance with Article 6 para. 1 (Art. 6-1)
51. The Commission considers that the relevant period to be considered
under Article 6 para. 1 (Art. 6-1) started on 11 July 1988, when the
Constitutional Court received the applicant's constitutional complaint. The
proceedings terminated on 5 December 1991, when the Constitutional Court's
decision was served on the applicant. The proceedings thus lasted
three years, four months and three weeks.
52. The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular circumstances
of the case and with the help of the following criteria: the complexity of
the case, the conduct of the parties and the conduct of the authorities
dealing with the case (see Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, p. 12, para. 30). On the latter point,
the importance of what is at stake for the applicant in the litigation has
to be taken into account (cf. Eur. Court H.R., Allenet de Ribemont judgment
of 10 February 1995, paras. 47, 57, to be published in Series A no. 308).
53. According to the Government, the length of the period in question is
due to the workload of the Second Chamber of the Constitutional Court in
general, and the lodging, over a period of two years following the
applicant's complaint, of altogether 24 complaints raising almost the same
pension issues.
54. The Commission finds that the present case was not as such
particularly complex. In this respect, the Commission observes in
particular that the Second Chamber of the Constitutional Court decided not
to admit the applicant's constitutional complaint for a further examination
on the ground that it did not offer sufficient prospects of success. While
the reasoning of this decision was rather detailed, the summary nature of
this procedure, which did not involve steps liable to lead to prolongations,
remains decisive.
55. The applicant did not cause any delays in the proceedings.
56. As regards the conduct of the Federal Constitutional Court, the
Government state that, at the relevant time, the Second Chamber of the
Constitutional Court had a particularly heavy work-load. In July 1988 when
the applicant filed his constitutional complaint and in the following
two years, several other constitutional complaints on these matters were
lodged. The major part of these altogether 24 cases were determined in
November 1991, including the applicant's complaint. At the same time, the
Second Chamber had to conduct proceedings in more urgent cases concerning
inter alia the periods of notice regarding the dismissal of workers (decided
on 30 May 1990), the right of an employer to lock out workers in the course
of strikes (decided on 26 June 1991), and the constitutional complaints of
former civil servants of the German Democratic Republic regarding a
provision of the Unification Treaty terminating their contracts of
employment (decided on 24 April 1991).
57. The Commission recalls that Article 6 para. 1 (Art. 6-1) imposes on
the Contracting States the duty to organise their judicial systems in such
a way that their courts can meet each of its requirements (Eur. Court H.R.,
Vocaturo judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17;
Pizzetti judgment of 26 February 1993, Series A no. 257-C, p. 37, para. 18).
In this context weight must be attached not only to the special features of
constitutional proceedings, but also to the nature and general importance
of the matters raised in the cases before the Constitutional Court
(cf. Eur. Court H.R., Ruiz-Mateos judgment, loc. cit., p. 23, paras. 51-52).
58. The Government point at the greater importance of other cases before
the Second Chamber. The Commission observes, however, that the questions
raised in the applicant's constitutional complaint were not limited to his
individual situation, but related to the lawfulness of statutory amendments
to a Supplementary Pension Scheme which resulted in a reduction of
supplementary pension rights for a large number of employees in the German
civil service.
59. It was in the first place for the Federal Constitutional Court to
adapt its procedure to the increasing number of such complaints, and to
ensure completion of the other proceedings pending before it, in particular
of the cases assigned to the Second Chamber.
60. The Commission, examining the length of the proceedings in the present
case in the light of Article 6 para. 1 (Art. 6-1) of the Convention,
considers that Constitutional Court proceedings lasting almost three years
and five months and terminating with a decision not to admit the applicant's
complaint for insufficient prospect of success were too long. In this
respect, the Commission took into account that, given the applicant's age,
what was at stake for him in the proceedings before the Federal
Constitutional Court was of pressing importance. Consequently, the
Commission finds that the proceedings exceeded a reasonable time within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
61. The Commission concludes, unanimously, that there has been a violation
of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy