Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31067/96

by Anton Joseph NIEMAN

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 November 1995

by Anton Joseph NIEMAN against the Netherlands and registered on

19 April 1996 under file No. 31067/96;

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 applicant is a Dutch national, born in 1932, and resides in

Voorburg, the Netherlands.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

Between 23 October 1958 and 1 May 1972, the applicant was

employed at the Ministry of Defence. As from 1 May 1972, the applicant

was found incapacitated for work and was granted an invalidity pension

under the General Civil Service Pension Act (Algemene Burgerlijke

Pensioenwet).

On 1 July 1979, the Act of 11 April 1979 containing an amendment

to the General Civil Service Pension Act entered into force setting a

specified minimum level for invalidity pensions granted under the

General Civil Service Pension Act.

Pursuant to Article XIII of the Act of 11 April 1979, published

in the Official Gazette (Staatsblad) nr. 304, persons whose invalidity

pension was lower than this guaranteed minimum level could file a

written request for a recalculation of their benefits in order to bring

their pensions in conformity with the new rules. The eligible persons

were informed of this possibility by a circular letter nr. 1179.115 of

October 1979.

Although the applicant's benefits were lower than the guaranteed

minimum level, he did not apply for a recalculation of his pension.

In May 1984, following an investigation, it had appeared to the

direction of the General Civil Service Pension Fund (Algemeen

Burgerlijk Pensioenfonds, hereinafter referred to "ABP") that a large

number of persons eligible for a recalculation had failed to submit a

request to this end. It was decided to make an ex officio recalculation

of the pensions of those persons who had not made such a request and

to grant that recalculation retroactive effect as from 1 May 1983.

By letter of 17 June 1985, the ABP informed the applicant that

his pension had been recalculated ex officio and that this

recalculation would be applied with retroactive effect as from

1 May 1983.

On 13 March 1986, the applicant's brother, a Dutch diplomat at

that time working in Ankara who - in view of the applicant's

difficulties to manage his financial and administrative affairs -

helped the applicant in managing such matters, filed a request on

behalf of the applicant to the ABP. He requested the ABP to review the

recalculation of his brother's pension to the effect that it be granted

retroactive effect as from 1 July 1979. It was submitted that it did

not appear from the applicant's administration that he had ever been

informed before 17 June 1985 that he could apply for a recalculation

of his pension.

On 13 June 1986, the ABP legal department requested the ABP

medical department to verify whether the applicant had been incapable,

between October 1979 and January 1980, to file a request for a

recalculation of his invalidity pension. According to the ABP medical

department, the applicant had not been incapable to file such a

request.

In a letter dated 16 September 1986, sent on 27 October 1986, the

ABP informed the applicant that the request of 13 March 1986 was

rejected. The applicant filed an objection (bezwaar) against this

decision on 4 December 1986 with the ABP Supervisory Board (Raad van

Toezicht van het Algemeen Burgerlijk Pensioenfonds).

By decision of 30 December 1987, the ABP Supervisory Board

declared the objection inadmissible for having been lodged out of time.

The applicant filed an appeal with the Civil Service Tribunal

(Ambtenarengerecht).

In the course of the proceedings before the Civil Service

Tribunal, the ABP Board (Bestuur van het Algemeen Burgerlijk Pensioen-

fonds), which had replaced both the direction and Supervisory Board of

the ABP as from 1 January 1988, informed the applicant on

11 August 1989 that it had noted that the decision sent on

27 October 1986 had not been communicated to the applicant's brother.

The ABP Board stated that it had decided to reconsider the challenged

decision, to declare the objection admissible and to examine it on the

merits. It did, however, reject the objection as ill-founded.

The ABP Board noted that a circular letter had been sent to

holders of a pension in October 1979 informing them when a request for

a recalculation could be submitted and that the applicant, although

qualifying for a recalculation, had failed to submit such a written

request.

It further held that it was apparent from the system of the

General Civil Service Pension Act that requests for retroactive effect

could only be granted in cases where a timely request had been made,

whereas in cases where such a request had not been timely made, the

General Civil Service Pension Act foresees a retroactive effect of a

maximum of one year. The ABP Board noted that, in accordance with this

system, Article XIII para. 2 of the Act of 11 April 1979 states that

a request for recalculation which has not been made within one year

following the entry into force of that Act, the recalculation cannot

be granted a retroactive effect of more than one year before the first

day of the month in which the request has been made. The ABP Board,

consequently, held that the decision in the applicant's case was in

conformity with the system and spirit of the General Civil Service

Pension Act.

The ABP Board further noted the opinion of the ABP medical

department that the applicant had not been incapable to manage matters

relating to his pension. Insofar as the applicant had contended that

he had never received the circular letter of October 1979, the ABP

Board stated that it could not be excluded that there were cases where

this letter had not reached its destination. Even assuming it had not

reached the applicant, it could, however, not set aside imperative

statutory rules.

The applicant filed an appeal against the decision of

11 August 1989 with the Civil Service Tribunal, which rejected it as

ill-founded on 30 January 1990. It held, inter alia, that the approach

taken in the applicant's case as regards the limited retroactive effect

was in conformity with decisions taken in a large number of other

similar cases and that these decisions had been accepted on appeal by

the Central Appeals Tribunal (Centrale Raad van Beroep).

The applicant filed an appeal with the Central Appeals Tribunal,

which rejected it on 11 June 1992 and upheld the challenged judgment

of 30 January 1990.

By letter of 19 February 1993, the applicant filed a new request

to the ABP Board to review its decision of 17 June 1985, which was

rejected on 16 September 1993. On the basis of medical statements

submitted, the Board accepted that the applicant had not been capable

to secure his pension interests appropriately between 14 and

23 October 1979, but did not find it established that the applicant

could not have timely requested a recalculation of his pension after

that period. Consequently it concluded that the factual basis of the

decision was correct.

The applicant's appeal to the Regional Court (Arrondissements-

rechtbank) of The Hague was rejected on 9 March 1994. The Regional

Court noted that the merits of the applicant's case had already been

determined in the previous proceedings before the Central Appeals

Tribunal and held that the medical statements the applicant now

submitted could already have been produced in those previous

proceedings.

The applicant's subsequent appeal to the Central Appeals Tribunal

was rejected on 24 May 1995. This decision was communicated to the

applicant on 1 June 1995. The Central Appeals Tribunal held that the

applicant's arguments were the same as those which it had already

examined in proceedings having resulted in the decision of

11 June 1992. It did not consider the medical information submitted by

the applicant to constitute a circumstance referred to in Article S 3

para. 1 (old) of the General Civil Service Pension Act, according to

which a decision taken shall be reviewed when it rests on a factually

incorrect basis or where it appears, after it has been taken, that the

decision should be based on other facts.

COMPLAINTS

The applicant complains that the refusal to grant the

recalculation of his invalidity pension retroactive effect until

1 July 1979 is contrary to Article 1 of Protocol No. 1.

The applicant further complains that the proceedings and refusal

at issue violated his rights under Article 6 of the Convention.

THE LAW

The applicant complains that the proceedings and decision

concerning his request to grant the recalculation of his invalidity

pension retroactive effect until 1 July 1979 violated his rights under

Article 6 (Art. 6) of the Convention and under Article 1 of Protocol

No. 1 (P1-1).

However, the Commission is not required to decide whether or not

the facts submitted by the applicant disclose any appearance of a

violation of the Convention as, in accordance with Article 26 (Art. 26)

of the Convention, the Commission finds that the final decision

regarding the applicant's case was given by the Central Appeals

Tribunal on 11 June 1992, which is more than six months before the date

on which the application was submitted.

This finding is not altered by the subsequent proceedings

instituted by the applicant, as they concerned an unsuccessful request

for a revision of a final decision on the basis of an alleged incorrect

factual basis of the initial refusal.

The Commission recalls that the refusal of an application to

reopen proceedings does not restart the running of the six months'

period referred to in Article 26 (Art. 26) of the Convention, unless

it is successful and actually results in a reopening (cf. No. 23949/94,

Dec. 8.5.94, D.R. 77, p. 140).

It follows that the application must be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

Menu

NIEMAN v. THE NETHERLANDS

NIEMAN v. THE NETHERLANDS

LEXI