EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 16717/90

                            Dietmar Pauger

                                against

                                Austria

                       REPORT OF THE COMMISSION

                     (adopted on 27 February 1996)

                           TABLE OF CONTENTS

                                                                 Page

I.    INTRODUCTION

      (paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 17-40). . . . . . . . . . . . . . . . . . . . . . . . 3

      A.   The particular circumstances of the case

           (paras. 17-30) . . . . . . . . . . . . . . . . . . . . . 3

      B.   Relevant domestic law

           (paras. 31-40) . . . . . . . . . . . . . . . . . . . . . 4

III.  OPINION OF THE COMMISSION

      (paras. 41-57). . . . . . . . . . . . . . . . . . . . . . . . 8

      A.   Complaint declared admissible

           (para. 41) . . . . . . . . . . . . . . . . . . . . . . . 8

      B.   Point at issue

           (para. 42) . . . . . . . . . . . . . . . . . . . . . . . 8

      C.   Article 6 para. 1 of the Convention

           (paras. 43-56) . . . . . . . . . . . . . . . . . . . . . 8

           a. Applicability of Article 6 para. 1 of the Convention

           (paras. 44-49) . . . . . . . . . . . . . . . . . . . . . 8

           b. Compliance with Article 6 para. 1 of the Convention

           (paras. 50-56) . . . . . . . . . . . . . . . . . . . . . 9

                           TABLE OF CONTENTS

                                                                 Page

           CONCLUSION

           (para. 57) . . . . . . . . . . . . . . . . . . . . . . .11

CONCURRING OPINION OF MM. G. JÖRUNDSSON, H.G. SCHERMERS,

M. PELLONPÄÄ, B. MARXER . . . . . . . . . . . . . . . . . . . . . .12

DISSENTING OPINION OF MM. C.L. ROZAKIS, E. BUSUTTIL,

A. WEITZEL, J.-C. SOYER, MRS. G.H. THUNE, MRS. J. LIDDY,

MM. L. LOUCAIDES, M.A. NOWICIK, N. BRATZA . . . . . . . . . . . . .14

PARTIALLY CONCURRING AND PARTIALLY DISSENTING

OPINION OF MR. TRECHSEL JOINED BY MR. A.S. GÖZÜBÜYÜK. . . . . . . .16

APPENDIX :       DECISION OF THE COMMISSION AS TO THE

                 ADMISSIBILITY OF THE APPLICATION . . . . . . . . .16

I.    INTRODUCTION

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant, an Austrian citizen born in 1941, is a university

professor residing in Graz.

3.    The application is directed against the Republic of Austria whose

Government were represented by their agent, Ambassador F. Cede, Head

of the International Law Department of the Federal Ministry for Foreign

Affairs.

4.    The case concerns proceedings for the granting of a widower's

pension to the applicant.  He complains that he did not have a hearing

in the proceedings before the Constitutional Court and invokes

Article 6 para. 1 of the Convention in this respect.

B.    The proceedings

5.    The application was introduced on 14 February 1990 and registered

on 13 June 1990.

6.    On 11 October 1993 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7.    The Government's observations were submitted on 28 January 1994

after one extension of the time-limit fixed for this purpose.  The

applicant replied on 21 March 1994.  On 28 March 1994 the applicant

supplemented those observations.

8.    On 9 January 1995 the Commission declared admissible the

applicant's complaint under Article 6 para. 1 of the Convention

regarding the lack of a hearing before the Constitutional Court.  It

declared inadmissible the remainder of the application.

10.   The text of the Commission's decision on admissibility was sent

to the parties on 18 January 1995 and they were invited to submit such

further information or observations on the merits as they wished.  No

observations were submitted.

11.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.    The present Report

12.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 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

                 I. CABRAL BARRETO

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

13.   The text of this Report was adopted on 27 February 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14.   The purpose of the Report, pursuant to Article 31 of the

Convention, is:

      (i)  to establish the facts, and

      (ii) to state an opinion as to whether the facts found disclose

           a breach by the State concerned of its obligations under

           the Convention.

15.   The Commission's decision on the admissibility of the application

is annexed hereto.

16.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    Particular circumstances of the case

17.   On 23 June 1984 the applicant's wife died.  She had been employed

as a school teacher in the civil service of the Region of Styria.

18.   On 24 August 1984 the applicant applied to the Regional Education

Council (Landesschulrat) for a widower's pension.  On 30 August 1984

the Education Council dismissed the application on the ground that the

relevant legislation, Section 14 para. 1 of the Pensions Act

(Pensionsgesetz), only provided for a widow's pension, not a widower's

pension.

19.   On 21 September 1984 the Regional Government (Landesregierung)

dismissed the applicant's appeal against the Regional Education

Council's decision. On 15 October 1984 the applicant lodged a complaint

with the Constitutional Court (Verfassungsgerichtshof) and on

22 October 1984 with the Administrative Court (Verwaltungsgerichtshof).

20.   Meanwhile, on 4 October 1984, the Constitutional Court had

repealed Section 14 para. 1 of the Pensions Act with effect from

28 February 1985.  The Court held that the discrimination against

widowers in the Pensions Act violated the constitutional principle of

equality (Gleichheitsgebot).

21.   On 13 February 1985 the Administrative Court dismissed the

applicant's complaint.  It held that, even after the Constitutional

Court had repealed Section 14 para. 1 of the Pensions Act, there was

no legal basis for the applicant's claim to a widower's pension. On

23 February 1985 the Constitutional Court refused to deal with the

applicant's complaint.  The Court found that it had already repealed

Section 14 para. 1 of the Pensions Act and could not decide on the same

issue again.

22.   On 26 September 1985 Parliament enacted the 8th Amendment to the

Pensions Act (8. Pensionsgesetznovelle) with retroactive effect from

1 March 1985 onwards.  Section 14 para. 1 now provided that the

surviving spouse of a civil servant was entitled to a pension.

According to the transitional provisions of Part 2 para. 2 of the Act,

a widower was entitled to one third of the full pension from 1 March

1985, to two thirds from 1 January 1989 and to the full pension from

1 January 1995.  Section 40a of the Pensions Act, which for the first

time had been introduced in 1984 (Federal Gazette No. 406/1984),

providing that the pension of a retired civil servant or of the

surviving spouse was suspended if the person entitled was still

gainfully employed, was formulated in a gender neutral manner.

23.   On 13 May 1985 the applicant applied again for a widower's

pension.  On 18 November 1985 the Regional Education Council granted

him a pension of AS 2.441,70, which corresponded to one third of the

applicant's full pension rights.

24.   On 28 November 1985 the applicant appealed to the Regional

Government.  He submitted that the Education Council had failed to

decide whether his pension was suspended according to Section 40a of

the Pensions Act, and that the decision was based on an

unconstitutional Act. On 7 January 1986 the Regional Government partly

upheld the applicant's appeal and suspended his pension.

25.   On 22 February 1986 the applicant lodged a complaint with the

Constitutional Court.  He submitted that the transitional provisions

of the amendment to the Pensions Act, which only entitled him to a

reduced pension until 1 January 1995, and Section 40a of the Pensions

Act, providing for suspension of pension rights, were unconstitutional.

26.   On 1 July 1987 the Constitutional Court instituted proceedings

for the examination of the constitutionality of Section 40a of the

Pensions Act, as set out in the 8th Amendment to the Pensions Act.  On

9 December 1987 the Court held a hearing in which the applicant

participated.  On 16 March 1988 the Court repealed Section 40a of the

Pensions Act with effect from 30 June 1988.  The Court held that the

provisions of the Pensions Act violated the principle of equality,

since no convincing reasons were given for the difference in treatment

between a retired civil servant, or the surviving spouse of a civil

servant with additional sources of income on the one hand, and an

active civil servant in the same situation on the other.  On

17 March 1988 the Constitutional Court also quashed the Regional

Government's decision of 7 January 1986.

27.   Thereupon on 21 June 1988 the Regional Government decided again

on the applicant's appeal of 28 November 1985.  Although it dismissed

the applicant's appeal, it thereby, in the reasoning of its decision,

confirmed the Regional Education Council's decision of 18 November 1985

in which the applicant had been granted a pension in the amount of one

third of his full pension rights.

28.   On 11 August 1988 the applicant introduced a new complaint with

the Constitutional Court.  Again he submitted that the transitional

provisions of the amendment to the Pensions Act, which reduced his

pension rights until 1 January 1995, were unconstitutional.  He did not

request the Constitutional Court to hold an oral hearing.

29.   On 3 October 1989 the Constitutional Court dismissed the

applicant's complaint without an oral hearing, relying on Section 19

para. 4 first sentence of the Constitutional Court Act.  It held that

the transitional arrangements reflected a continuing change in society

regarding equality of the sexes and, thus, were not contrary to the

principles of equality.

30.   On 5 June 1990 the applicant introduced a communication to the

Human Rights Committee concerning the same facts as his application to

the Commission.  He invoked a violation of 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".  On

30 March 1992 the Human Rights Committee found a violation of

Article 26 of the International Covenant on Civil and Political Rights.

B.    Relevant domestic law

      a.   The Pensions Act

31.   The pension scheme for civil servants is regulated by the

Pensions Act 1965 (Pensionsgesetz 1965).

32.   According to Section 2 para. 1 of the Pensions Act, a civil

servant acquires a right to a pension for himself and the members of

his family, that is his spouse, his former spouse and his children,

from the day on which he takes up his functions. Upon retirement the

civil servant is entitled to a pension.  If he dies, his spouse, former

spouse and children are also entitled to a pension (Sections 14, 17 and

19 Pensions Act).  The pension is paid by the same authority which was

paying the civil servant's salary.

33.   According to Section 22 of the Salary Act (Gehaltsgesetz), a

civil servant has to pay contributions to the pension scheme amounting

to 10% of his salary.  This amount is automatically deducted from the

salary. The pension is calculated on the basis of the civil servant's

last salary and his years of service (Section 4 Pensions Act).

34.   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."

35.   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."

      b.   Proceedings before the Austrian Constitutional Court

36.   According to Article 144 of the Austrian Federal Constitution,

the Constitutional Court decides on complaints against formal decisions

(Bescheide) of administrative authorities, including the independent

Administrative Tribunals (Unabhängige Verwaltungssenate), insofar as

an applicant alleges a violation of his constitutionally guaranteed

rights or a violation of his rights by virtue of the application of an

illegal ordinance, an unconstitutional law, or an unlawful

international treaty.

37.   Complaints under Article 144 of the Federal Constitution can only

be lodged after exhaustion of ordinary remedies and within six weeks

after the decision taken at last instance has been served on the

applicant (Section 82 para. 1 Constitutional Court Act 1953).  The

complaint is then transmitted by the Court to the authority which took

the challenged decision.  The authority then has the right to submit

observations on the complaint within a time-limit set by the Court

(Section 83 para. 1 Constitutional Court Act).

38.   After the authority's observations have been received by the

Court or the time-limit has expired, the President of the Court orders

a hearing if the complaint cannot be determined in a court session in

camera.  Hearings in which the applicant, the authority and others

affected by the decision (Beteiligte) participate are public

(Section 84 para. 1 and Section 19 Constitutional Court Act).

39.   The grounds for deciding without a hearing are set out in

Section 19 paras. 3 and 4 of the Constitutional Court Act as amended

by the Federal Law of 1984, Federal Law Gazette No. 297, as follows:

      "(3) Without further proceedings and without a hearing the

      Constitutional Court can decide, upon proposal by the Rapporteur,

      in a court session held in camera:

           1.    To refuse to entertain a complaint according to

           Article 144 para. 2 of the Federal Constitution.

           2.    To reject an application for:

                 a. manifest lack of jurisdiction of the Constitutional

                 Court,

                 b. failure to observe a statutory time-limit,

                 c. failure to remedy the non-observance of a formal

                 requirement,

                 d. res judicata,

                 e. lack of standing.

           3.    To discontinue proceedings because an application has

           been withdrawn or the case has been resolved.

      (4)  The Constitutional Court may decide not to hold a hearing

      when it is apparent to the Court, from the written pleadings of

      the parties to the proceedings before the Constitutional Court

      and from the files relating to the prior proceedings, that a

      hearing is not likely to contribute to the clarification of the

      case.  Upon a proposal by the Rapporteur, it may also decide

      without a hearing:

           1. to dismiss a complaint if a constitutionally guaranteed

           right has manifestly not been violated;

           2. cases where the question of law has been clarified

           sufficiently by the prior case-law of the Constitutional

           Court;

           3. to allow a complaint which has provided the occasion to

           repeal an unlawful Ordinance, an unconstitutional Act or an

           unconstitutional International Treaty."

40.   According to Article 140 para. 7 of the Federal Constitution, a

law shall continue to apply to the circumstances that have occurred

before the date of the Constitutional Court's decision ordering it to

be repealed, the case in point excepted, unless the Constitutional

Court in its decision decides otherwise.  If the Constitutional Court

in its repeal decision has set a time-limit, the law shall apply to all

the circumstances occurring, the case in point excepted, until the

expiry of this time-limit.  According to Article 140 para. 5 of the

Federal Constitution, the Constitutional Court may set a time-limit for

the repeal of up to one year.

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

41.   The Commission has declared admissible the applicant's complaint

about the lack of a hearing before the Constitutional Court on his

complaint of 11 August 1988.

B.    Point at issue

42.   Accordingly the issue to be determined is whether there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C.    Article 6 para. 1 (Art. 6-1) of the Convention

43.   Article 6 para. 1 (Art. 6-1) of the Convention, as far as

relevant, reads as follows:

      "In the determination of his civil rights and obligations

      ..., everyone is entitled to a fair and public hearing

      within a reasonable time  by an independent and impartial

      tribunal established by law."

a.    Applicability of Article 6 para. 1 (Art. 6-1) of the Convention

constituted a civil right within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.  Neither peculiarities of public law

relating to civil servants nor provisions in the budget for grants

towards civil servants' pensions, could lead to a different conclusion.

Furthermore, his complaint to the Constitutional Court of

11 August 1988 was directly linked to the proceedings concerning the

determination of this civil right.  If the Constitutional Court would

have repealed the transitional provisions he would have been entitled

to a widower's pension in the full amount from the outset.

45.   The Government submit that the claim to a widower of a deceased

civil servant to a widower's pension could not be regarded as a civil

right within the meaning of Article 6 para. 1 (Art. 6-1) since it was

by its nature a claim under public law and could not be compared to

private pension schemes.  Contributions paid by civil servants to the

pension scheme only covered a small part of the pension payments made

by the State, so that the most significant portion is paid out of the

general budget of the Federal and Regional Governments.  Moreover,

according to the legislation in force the applicant had no right to a

widower's pension in the full amount as by the transitional provisions

his pension claim was clearly reduced.  In his complaint to the

Constitutional Court of 11 August 1988 he had requested that the

Regional Government's decision of 21 June 1988 be quashed on the ground

that an unconstitutional provision had been applied.  In these

proceedings the applicant had not relied on any right emanating from

specific domestic statutes.  He only wanted to bring about a new legal

situation and derive a previously non-existent right therefrom.

46.   The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention only applies to disputes over "rights and obligations" which

can be said, at least on arguable grounds, to be recognised under

domestic law.  Article 6 (Art. 6) does not in itself guarantee any

particular content for "rights and obligations" in the substantive law

of the Contracting States (cf. Eur. Court H.R., James and others

judgment of 21 February 1986, Series A no. 98, p. 46, para. 81, and

Lithgow and others judgment of 8 July 1986, Series A no. 102, p. 70,

para. 192).  The dispute which gives a right to a determination by a

court must be "genuine and of a serious nature" (see Eur. Court H.R.,

Benthem judgment of 23 October 1985, Series A no. 97, p. 14, para. 32).

47.   The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention has already been applied to proceedings concerning pension

rights of civil servants, including rights to a widower's pension (Eur.

Court H.R., F. Lombardo judgment of 26 November 1992, Series A

no. 249-B, pp. 26-27, paras. 14 et seq.; G. Lombardo judgment of

26 November 1992, Series A no. 249-C, p. 42, paras. 13 et seq.; Massa

judgment of 24 August 1993, Series A no. 265-B, p. 20, para. 26).  The

mere fact that, as in the present case, the claim to a widower's

pension was governed by public law and that the State makes financial

contributions to the making of pension payments cannot lead to a

different conclusion.

48.   Furthermore, the Commission finds that there was a dispute

("contestation") concerning a right, as required for the applicability

of Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R., Sporrong and

Lönnroth judgment of 23 September 1982, Series A no. 52, pp. 29-30,

paras. 79 et seq.).  This dispute concerned the scope of the

applicant's pension claims and was brought before the Constitutional

Court by the applicant's complaint of 11 August 1988.  It is true that,

in its earlier case-law, the Court has held that issues of

constitutional law do not concern disputes about civil rights within

the meaning of Article 6 para. 1 (Art. .6-1) (see Eur. Court H.R.,

Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para 48;

Sramek judgment of 22 October 1984, Series A no. 84, p. 17, para. 35).

In the Ruiz-Mateos case, however, the Court found that also proceedings

before a constitutional court concern disputes about civil rights and

obligations when there is a close link between the ordinary proceedings

and the Constitutional Court's proceedings (see Eur. Court H.R., Ruiz-

Mateos judgment of 23 June 1993, Series A no. 262, p. 24, para. 59; see

also Süssmann v. Germany, Comm. Report 12.4.95).  In the present case,

a decision by the Constitutional Court to repeal the transitional

provisions could have led to the granting of the applicant's full

pension claim.

49.   The Commission therefore finds that Article 6 para. 1 (Art. 6-1)

of the Convention applies to the proceedings on the applicant's pension

claim before the Constitutional Court.

b.    Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

50.   The applicant submits that the Austrian reservation to Article 6

(Art. 6) of the Convention did not prevent the Commission from

considering the question of the lack of a public hearing before the

Constitutional Court.  The reservation was not applicable and was in

any event invalid as it did not comply with the criteria of Article 64

of the Convention. Furthermore, having regard to Section 19 para. 1 of

the Constitutional Court Act which stipulates that the Constitutional

Court shall in principle hold public hearings, he could not be deemed

to have waived his right to a public hearing.  Also the fact that the

Regional Government did not file submissions was not a good reason for

deciding on his complaint without a public hearing.

51.   The Government submit that the Austrian reservation to Article 6

(Art. 6) of the Convention is valid and applicable to the proceedings

before the Constitutional Court, and it therefore prevents the

Commission from examining this issue.  In any event, the absence of a

hearing before the Constitutional Court did not violate Article 6

para. 1 (Art. 6-1).  The applicant, a university professor in

constitutional law, and his lawyer must have been aware of the

Constitutional Court's practice, based on Section 19 para. 4 of the

Constitutional Court Act, to hold only in exceptional cases a public

hearing in proceedings on complaints by individuals.  Nevertheless the

applicant did not expressly request a public hearing and must therefore

be deemed to have waived his right to such a hearing.  There was also

no public interest in holding a public hearing, since the Regional

Government did not submit any observations on the applicant's

complaint.

52.   The Austrian reservation to Article 6 (Art. 6) of the Convention

provides as follows:

      "The provisions of Article 6 (Art. 6) of the Convention

      shall be so applied that there shall be no prejudice to the

      principles governing public court hearings laid down in

      Article 90 of the 1929 version of the Federal

      Constitutional Law."

53.   However, the Commission need not determine whether it is

prevented by the above reservation from examining the question of the

lack of a public hearing before the Constitutional Court, because, for

the following reasons, the lack of a public hearing in the proceedings

before the Constitutional Court did not infringe Article 6 para. 1

(Art. 6-1) of the Convention.

54.   The Commission observes that in the present case the Regional

Education Council and the Regional Government which decided on the

applicant's pension claim were purely administrative bodies.  Having

regard to the specific nature of the applicant's complaint, namely the

allegation that the transitional provisions of the amendment to the

Pension Act which reduced his pension rights were unconstitutional, the

Constitutional Court was the only body which could determine this

aspect of the dispute between the applicant and the pension

authorities.  The applicant was therefore in principle entitled to an

oral hearing before the Constitutional Court as none of the exceptions

laid down in the second sentence of Article 6 para. 1 (Art. 6-1)

applied (cf. Eur. Court H.R., HÃ¥kansson and Sturesson judgment of

21 February 1990, Series A no. 171, p. 20, para. 64).

55.   However, it is the practice of the Austrian Constitutional Court

not to hear the parties unless one of them expressly requests it to do

so.  In such a situation the applicant could have been expected to ask

for a hearing if he had found it important that one be held (see Eur.

Court H.R., HÃ¥kansson and Sturesson judgment loc. cit., pp. 20 et seq.,

para. 67).  The question of whether or not an applicant has requested

a public hearing only becomes irrelevant for examining compliance with

Article 6 para. 1 (Art. 6-1) of the Convention when the respective

domestic law excludes the holding of public hearings (see Eur. Court

H.R., Diennet judgment of 26 September 1995, para. 34, to be published

in Series A no. 325-A).

56.   As the applicant did not make such a request, he must be deemed

to have unequivocally waived his right to a public hearing (see Eur.

Court H.R., Zumtobel judgment of 21 September 1993, Series A no. 268,

p. 14, para. 34).  Furthermore, it does not appear that the litigation

involved any questions of public interest warranting a public hearing.

      CONCLUSION

57.   The Commission concludes, by 17 votes to 11, that in the present

case there has been no violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

Secretary to the Commission                 President of the Commission

      (H.C. KRÜGER)                                  (S. TRECHSEL)

                                                        (Or. English)

       CONCURRING OPINION OF MM. G. JÖRUNDSSON, H.G. SCHERMERS,

                       M. PELLONPÄÄ, B. MARXER.

      We voted with the majority of the Commission to the effect that

there had been no breach of Article 6 of the Convention.  However, we

do not share the opinion of the majority of the Commission that Article

6 of the Convention applies in this case.

      Article 6 para. 1 of the Convention only applies to disputes over

"rights and obligations" which can be said, at least on arguable

grounds, to be recognised under domestic law.  Article 6 does not in

itself guarantee any particular content for "rights and obligations"

in the substantive law of the Contracting States (cf. Eur. Court H.R.,

James and others judgment of 21 February 1986, Series A no. 98, p. 46,

para. 81, and Lithgow and others judgment of 8 July 1986, Series A no.

102, p. 70, para. 192).  The dispute which gives a right to a

determination by a court must be "genuine and of a serious nature" (see

Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97,

p. 14, para. 32).

      In the present case the applicant, in his complaints to the

Constitutional Court of 22 February 1986 and 11 August 1988, challenged

the constitutionality of provisions of the Pensions Act as amended on

26 September 1985.  In his first complaint he attacked provisions which

provided for the suspension of a widow's or widower's pension while the

person entitled was still gainfully employed, and the transitional

provisions accompanying the introduction of a widower's pension. In his

second complaint he only attacked the constitutionality of the latter

provision.

      Pursuant to part II. para. 2 of the 8th Amendment to the Pensions

Act, the applicant was entitled to a reduced pension.  He does not

submit that the Regional Government did not correctly apply the law in

force.  It has to be stressed that ordinary Austrian law unequivocally

excluded the applicant from the benefit of a full widower's pension.

In his complaint to the Constitutional Court he attacked the existing

legislation with a view to obtaining a basis for new claims.  The

subject matter of the applicant's constitutional complaint was not a

claim to a full widower's pension but the applicant's allegation that

the legislation in force which did not support such a claim was in

conflict with constitutional provisions of Austrian law.  The

constitutional complaint therefore did not concern an existing right

but the creation of a new right which was more favourable to his claim

for a full widower's pension.  As there was no existing right, the

applicant was merely able to allege before the Constitutional Court

that he ought to have one.  However, such an allegation is not, of

itself, sufficient to constitute a "civil right" in domestic law.

      In this respect the present case must also be distinguished from

the Ruiz-Mateos judgment of the European Court of Human Rights, where

the applicants complained about the proceedings before the Spanish

Constitutional Court, in which the latter examined the

constitutionality of an expropriation by law which had deprived them

of a previous right (see Eur. Court H.R., Ruiz-Mateos judgment of 23

June 1993, Series A no. 262, p. 24, paras. 58-59; see also Procola

judgment of 28 September 1995, para. 39, to be published in Series A

no. 326).

      Furthermore it should be noted that Article 13 of the Convention

does not guarantee a remedy allowing a Contracting state's statutes as

such to be challenged before a national authority on the ground of

their being contrary to the Convention or to equivalent domestic legal

norms (see James and Others judgment of 21 February 1986, Series A no.

98-B, p. 47, para. 85; Leander judgment of 26 March 1987, Series A

no. 116, p. 30, para. 77).  Even less can Article 6 apply to

proceedings, in which the review of the constitutionality of ordinary

legislation is sought, like, in the present case, the provisions of the

Austrian Pensions Act.

      For these reasons we find that the proceedings before the

Constitutional Court did not concern the determination of "civil rights

and obligations" within the meaning of Article 6 para. 1 of the

Convention.

                                                        (Or. English)

DISSENTING OPINION OF MM. C.L. ROZAKIS, E. BUSUTTIL, A. WEITZEL,

J.-C. SOYER, MRS. G.H. THUNE, MRS. J. LIDDY, MM. L. LOUCAIDES,

M.A. NOWICKI, N. BRATZA

      We agree with the majority that Article 6 para. 1 of the

Convention applies to the proceedings before the Constitutional Court.

However, for the following reasons, we find that the applicant's right

under Article 6 para. 1 to a public hearing before this court has been

violated.

      We do not find that the Commission is prevented from examining

this question by the Austrian reservation to Article 6 of the

Convention.  This reservation reads as follows:

      "The provisions of Article 6 of the Convention shall be so

      applied that there shall be no prejudice to the principles

      governing public court hearings laid down in Article 90 of

      the 1929 version of the Federal Constitutional Law."

      The European Court of Human Rights has considered the question

of the compatibility of declarations and reservations with Article 64

of the Convention on several occasions (see for example, Eur. Court

H.R., Belilos judgment of 29 April 1988, Series A no. 132; Weber

judgment of 22 May 1990, Series A no. 177; Chorherr judgment of 25

August 1993, Series A no. 266-B; Gradinger judgment of 23 October 1995,

para. 51, to be published in Series A no. 328-C). The Court has held

that Article 64 para. 1 of the Convention requires "precision and

clarity" and that the requirement set forth in Article 64 para. 2 that

a reservation shall contain a brief statement of the law concerned is

not a "purely formal requirement but a condition of substance" which

"constitutes an evidential factor and contributes to legal certainty"

(Belilos judgment, paras. 55 and 59).

      As regards the compatibility of the Austrian reservation to

Article 6 of the Convention with the above criteria under Article 64

of the Convention, the Commission has found in the Stallinger and Kuso

case (Stallinger and Kuso v. Austria, Comm. Report 7.12.95, para. 61)

as follows:

      "In this respect the Commission notes that the reservation at

      issue does not contain a "brief statement" of the law which is

      said not to conform to Article 6 of the Convention. From the

      wording of the reservation it might be inferred that Austria

      intended to exclude from the scope of Article 6 all proceedings

      in civil and criminal matters before ordinary courts insofar as

      particular laws allowed for non-public hearings. However, a

      reservation which merely refers to a permissive, non-exhaustive,

      provision of the Constitution and which does not refer to, or

      mention, those specific provisions of the Austrian legal order

      which exclude public hearings, does not "afford to a sufficient

      degree 'a guarantee ... that [it] does not go beyond the

      provision expressly excluded' by Austria" (see Gradinger

      judgment, para. 51, Chorherr judgment, para. 20). Accordingly,

      the reservation  does not satisfy the requirements of Article 64

      para. 2 of the Convention.  In such circumstances the Commission

      finds that there is no need also to examine whether the other

      requirements of Article 64 were complied with."

      We find that the above reasoning also applies to the present

case.

      The next question concerns the absence of a public hearing before

the Constitutional Court.  The Regional Education Council and the

Regional Government which decided on the applicant's pension claim were

purely administrative bodies.  Having regard to the specific nature of

the applicant's complaint, namely the allegation that the transitional

provision of the amendment to the Pension Act which reduced his pension

rights were unconstitutional, the Constitutional Court was the only

body which could determine this aspect of the dispute between the

applicant and the pension authorities.  The applicant was therefore in

principle entitled to an oral hearing before the Constitutional Court

as none of the exceptions laid down in the second sentence of Article 6

para. 1 applied (cf. Eur. Court H.R., HÃ¥kansson and Sturesson judgment

of 21 February 1990, Series A no. 171, p. 20 para. 64).

      It is the practice of the Austrian Constitutional Court not to

hear the parties unless one of them expressly requests it to do so.

The Commission has repeatedly found that in such a situation the person

concerned could be expected to ask for a hearing if he found it

important that one be held and that the failure to do so must be deemed

to constitute an unequivocal waiver of the right to a public hearing

(see e.g. above mentioned HÃ¥kansson and Sturesson judgment, pp. 20 et

seq., para. 67; Zumtobel judgment of 21 September 1993, Series A

no. 268, p. 14, para. 34).  However, in dealing with this question the

Court always examined further whether the dispute raised issues of

public importance such as to make a public hearing necessary

notwithstanding the failure of the parties to request one.  In

particular it found that when the dispute concerned highly technical

issues the public interest did not require a public hearing (Eur. Court

H.R., Schuler-Zgraggen judgment of 24 June 1993, Series A no. 263,

p. 20, para. 61).  Moreover, the waiver of a procedural right, in order

to be effective, requires minimum guarantees commensurate to its

importance (see Eur. Court H.R., Pfeifer and Plankl judgment of

25 February 1992, Series A no. 227, pp. 16-17, para. 37).

      We note that the applicant did not request the Constitutional

Court to hold a public hearing on his complaint of 11 August 1988.

However in assessing whether the dispute involved any questions of

public interest which could have made a public hearing necessary the

subject matter of the dispute before the Constitutional Court must be

taken into consideration.  The proceedings involved questions of

constitutionality of an Act which was of importance not only for the

applicant but for a larger group of persons and involved issues of

gender discrimination in the field of pension rights.  In such

circumstances the public importance of the dispute required in

principle the holding of a public hearing.  Moreover, we note the

absence of minimum guarantees commensurate to the importance of the

proceedings at issue.

      Therefore, there has, in our opinion, been a violation of

Article 6 para. 1 of the Convention.

                                                        (Or. English)

             PARTIALLY CONCURRING AND PARTIALLY DISSENTING

         OPINION OF MR. TRECHSEL, JOINED BY MR. A.S. GÖZÜBÜYÜK

      In the present case I have voted with the minority finding a

violation of Article 6 of the Convention and I agree with the reasoning

put forward by Mr. C.L. Rozakis and his colleagues.

      However, when voting on the question of whether there had or had

not been a violation of Article 6, I based myself on the finding of the

majority that Article 6 applied to the proceedings before the

Constitutional Court.  If Article 6 applied to these proceedings the

Constitutional Court should not have decided on the applicant's

complaint without a public hearing.  Nevertheless, I do not find that

Article 6 applied to the proceedings before the Constitutional Court.

I therefore also subscribe to the concurring opinion of

Mr. G. Jörundsson and his colleagues, attached to this Report.