Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22413/93

by A. G.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 27 February 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, 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 7 May 1993 by

A. G. against Austria and registered on 4 August 1993 under file

No. 22413/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

28 April 1995 and the observations in reply submitted by the

applicant on 17 July 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian national, born in 1928 and residing

in Graz. He is a former politician and was, inter alia, Mayor of Graz.

Before the Commission he was initially represented by

Mr. L. Kaltenbäck, a lawyer practising in Graz, and is now represented

by Mrs. E. Simma, a lawyer practising in Graz.

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

summarised as follows.

A. Particular circumstances of the case

In 1983 the applicant retired as Mayor of Graz. On 18 March 1983

the Graz Executive Council granted the applicant a pension as former

Mayor of Graz in the amount of AS 107,928 per month. His pension was

calculated according to the 1967 Statute of Graz (Stadtstatut), in its

version of 1983. In addition to his pension the applicant received a

salary as civil servant of the Municipality of Graz in the amount of

some AS 50,000.

Following public discussion on the pension entitlements of former

politicians new legal provisions limiting pension claims of former

politicians were adopted on federal and regional level.

On 1 November 1984 the Statute of Graz was also amended. In

particular Section 39b now provided that pension claims of members of

the Executive Council were reduced if these members drew an income from

the Federal State or the Region of Styria or from a company owned by

the Republic or Styria. In this case they were only entitled to draw

as pension the difference between their full pension claim and their

further income. Similar provisions were adopted for Innsbruck and

Vienna.

On 26 April 1985 the Graz Executive Council reduced the

applicant's pension rights. The Executive Council found that the

applicant's pension right had to be recalculated on the basis of

Section 39a and 39b of the Statute of Graz. As the applicant continued

to draw a salary as civil servant of Graz, his pension claim had to be

reduced in the amount of this salary.

On 10 May 1985 the applicant appealed against this decision.

On an unspecified date the Graz Municipal Council dismissed the

applicant's appeal. This decision was served on him on

29 October 1985.

On 28 November 1985 the applicant filed a complaint against the

Municipality Council's decision with the Constitutional Court

(Verfassungsgerichtshof). The applicant submitted that the decision

was based on an unconstitutional act, namely on Section 39a and 39b of

the amended Statute of Graz, as these provisions violated the principle

of equality.

Following the complaint lodged by the applicant and complaints

by several others, the Constitutional Court instituted proceedings for

the examination of the constitutionality of Section 39b para. 1 of the

Statute of Graz, as well as similar provisions in the Statute of

Innsbruck and Vienna.

On 18 March 1987 the Constitutional Court repealed Section 39b

para. 1 of the Statute of Graz as unconstitutional. The Constitutional

Court found that a provision which limits pension claims in case they

coincide with an additional salary or pension would not, as such,

violate the principle of equality even if it interfered with pension

rights which had already been acquired. However, in interfering with

acquired rights the legislator had to respect the principle of

equality. Since the expectation to be entitled to a pension is also

an element which a politician takes into consideration when he stands

for office and exercises public functions, the legislator, in reducing

pension claims, had to take such expectations into account. If, like

in the present case, the resulting reduction of the pension right is

substantial and also concerns politicians who exercised public

functions for a long time, the legislator was bound to distinguish

between this group and other politicians who had only recently entered

into office. As the provision at issue failed to take this factual

difference into account it violated the principle of equality.

On the same day the Constitutional Court quashed the Municipal

Council's decision as being based on an unconstitutional act. On

11 June 1987 this decision was served on the parties.

The Constitutional Court's decision was sharply criticised in the

media.

On 5 June 1987 Parliament adopted the Federal Constitutional Act

on the Limitation of Pension Claims of Highest Public Officials

(Bundesverfassungsgesetz über die Begrenzung von Pensionen oberster

Organe) according to which the pension claims of such officials can be

limited by law to a maximum amount if they coincide with other income

drawn from the Federal State or a Region.

On 3 July 1987 the Styria Regional Parliament (Landtag) amended

again the Statute of Graz and reintroduced the provision the

Constitutional Court had quashed on 18 March 1987 with retroactive

effect from 1 November 1984 on.

On 19 May 1988 the Graz Municipal Council again dismissed the

applicant's appeal of 10 May 1985. It found that the Graz Executive

Council's decision of 26 April 1985 was in accordance with the Statute

of Graz as amended on 3 July 1987.

On 24 June 1988 the applicant lodged a further complaint with the

Constitutional Court against the decision of 19 May 1988, referring to

the Constitutional Court's previous decision of 18 March 1987.

On 2 March 1990 the Constitutional Court repealed a provision of

the Rules of Procedure of the Graz Municipal Council (Geschäftsordnung

für den Gemeinderat der Landeshauptstadt Graz) as unlawful, which had

been applied when the Municipal Council took its decision of

19 May 1988 on the applicant's appeal.

On 7 March 1990 the Constitutional Court quashed the Graz

Municipal Council's decision of 19 May 1988 because in the proceedings

on the applicant's appeal an unlawful provision had been applied.

On 28 May 1991 the Graz Municipal Council dismissed for the third

time the applicant's appeal of 10 May 1985.

On 4 July 1991 the applicant lodged a further complaint with the

Constitutional Court against this decision, complaining that it

violated the principle of equality, his right to property and his

rights under Article 6 of the Convention.

On 28 September 1992 the Constitutional Court refused to

entertain the applicant's complaint for lack of prospect of success and

remitted the case to the Administrative Court (Verwaltungsgerichtshof).

On 30 September 1996 the Administrative Court applied to the

Constitutional Court for review of the constitutionality of Section 39b

para. 1 of the Statute of Graz and the provision of the Statute's

Amendment of 3 July 1987 giving retrospective effect to this provision.

The Administrative Court submitted that there existed doubts on the

constitutionality of these provisions. The Constitutional Act of

5 June 1987 allowed for reductions of pension claims but in the absence

of any specific regulations therein limitations of pension claims by

politicians were still subject to the principle of equality as applied

by the Constitutional Court in its decision of 18 March 1987.

Furthermore, the Constitutional Act of 5 June 1987 did not provide for

a retroactive limitation of pension claims and in such circumstances

it was questionable whether the Statute of Graz could do so.

On 4 November 1996 the Constitutional Court opened proceedings

for the review of the constitutionality of the provisions attacked by

the Administrative Court and communicated the case to the Styria

Regional Government.

The case is still pending before the Constitutional Court.

B. Relevant domestic law

a. The Statute of Graz

The Statute of Graz (Statut der Landeshauptstadt Graz) includes

provisions governing the payment of remuneration to members of the

Municipal and Executive Council and of pensions to members of the

Executive Council. According to Section 39 members of the Executive

Council are entitled to a remuneration and several specified

indemnities. A part of these payments are automatically deducted as

contributions to a pension scheme. According to Section 39a, as

amended by Regional Act no. 11 of 1 November 1984, members of the

Executive Council, as well as their surviving spouses or children are

entitled to a pension, if they had been members of the Executive

Council for at least 8 years and from the age of 55 years onwards.

According to Section 39b para. 1, as amended by Regional Act no. 11 of

1 November 1984, this pension claim is reduced if they draw an income

from the Republic or the Region of Styria or from a company owned by

the Republic or Styria. In this case they are only entitled to draw

as pension the difference between their full pension claim and their

further income.

Section 39b para. 1 was repealed by the Constitutional Court on

18 March 1987 but reenacted by Regional Act no. 71 of 3 July 1987 with

retroactive effect from 1 November 1984 on.

b. Federal Constitutional Act of 5 June 1987

On 5 June 1987 Parliament enacted the Federal Constitutional Act

on the Limitation of Pension Claims of Highest Public Officials

(Bundesverfassungsgesetz vom 5 Juni 1987 über die Begrenzung von

Pensionen oberster Organe). According to this Constitutional Act

provisions of law may be enacted which provide that pension payments

to highest public officials of the State or of a Region may only be

granted up to a maximum amount if they coincide with other payments

made by territorial entities or institutions which are subject to the

control of the Court of Audit.

c. Constitutional Court Proceedings

According to Article 140 of the Federal Constitution the

Constitutional Court is competent to examine the constitutionality of

provisions of Federal or Regional Acts. The Constitutional Court does

so if it is seized by a request of the Administrative Court, the

Supreme Court, a Court of second instance or an Independent

Administrative Senate and if these courts have to apply the provision

at issue in proceedings pending before them. The Constitutional Court

may also examine the constitutionality of a provision of Federal or

Regional Acts if it has to apply it in proceedings on individual

complaints pending before it. In examining the constitutionality, the

Constitutional Court is bound by all provisions of Federal

Constitutional Law. As regards Constitutional Acts themselves, it may

only examine whether Parliament has complied with the rules governing

the proceedings for enacting Constitutional Acts.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that he did not have a fair hearing in the proceedings determining the

limitation of his pension claim.

a. He submits that it was contrary to the rule of law that the

Federal Constitutional Act of 5 June 1987 and the Regional Parliament

Amendment of the Statute of Graz of 3 July 1987, by which the very

provision which the Constitutional Court had repealed had been enacted

again, had rendered the Constitutional Court's decision of

18 March 1987 ineffective.

b. He also submits that the Graz Municipality Council did not comply

with the Constitutional Court's decision of 18 March 1987 and grant him

his full pension right, but delayed its decision until Section 39b

para. 1 of the Statute of Graz had been enacted again on which basis

it could again refuse his appeal.

c. He further submits that the Styria Regional Parliament, when

amending the Statute of Graz on 1 November 1984 interfered with his

acquired pension rights.

2. The applicant also complains under Article 6 para. 1 of the

Convention about the length of the proceedings by which his pension

claim was determined.

3. The applicant complains under Article 6 of the Convention about

the Constitutional Court's refusal to entertain his complaint of

4 July 1991. He submits that his pension claim was determined in first

and second instance only by administrative authorities. Article 6

would therefore require that he had access to the Constitutional Court,

which alone could decide on the constitutionality of the legislation

at issue.

4. Lastly, he complains under Article 1 of Protocol No. 1 about a

violation of his rights to peaceful enjoyment of his possession. He

submits that on 3 July 1987 the Regional Parliament enacted with

retroactive effect Section 39b para. 1 of the Statute of Graz, the very

provision which the Constitutional Court had repealed as

unconstitutional, thus depriving him of parts of his acquired pension

claim.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 May 1993 and registered on

4 August 1993.

On 17 January 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

28 April 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 17 July 1995. On 9 December 1996

the applicant submitted documents concerning the proceedings pending

before the Constitutional Court.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the fairness of the proceedings determining the

limitation of his pension claim in various respects. He further

complains under Article 1 of Protocol No. 1 (P1-1) about a violation

of his rights to peaceful enjoyment of his possession.

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

the facts alleged by the applicant disclose any appearance of a

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

the applicant complains about the alleged unfairness of the proceedings

at issue, or of Article 1 of Protocol No. 1 (P1-1), as under Article

26 (Art. 26) of the Convention, it may only deal with a matter after

all domestic remedies have been exhausted according to the generally

recognised rules of international law.

The Commission observes that after the Constitutional Court on

28 September 1992 had refused to entertain the applicant's complaint

for lack of prospect of success and had remitted the case to the

Administrative Court, the latter, on 30 September 1996, applied for a

review of the constitutionality of the provisions allowing for a

retroactive limitation of the applicant's pension claim. The

Constitutional Court, on 4 November 1996 opened proceedings for

constitutional review and these proceedings are still pending.

The Commission therefore finds that the application in this

respect is premature as no final decision has yet been taken in the

above proceedings.

It follows that this part of the application must be rejected

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

2. The applicant also complains under Article 6 para. 1 (Art. 6-1)

of the Convention about the length of the proceedings by which his

pension claim was determined.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar 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."

The Government submit that the applicant had failed to exhaust

domestic remedies as required by Article 26 (Art. 26) of the Convention

in relation to this complaint, since he had failed in the domestic

proceedings to bring a complaint to the Administrative Court about the

Municipal Council's inactivity in deciding again on his appeal after

the Constitutional Court's decision of 18 March 1987.

In the Government's view Article 6 para. 1 (Art. 6-1) of the

Convention is in any event not applicable to the proceedings on the

applicant's pension claim. In the case-law of the Convention organs

pension claims of civil servants have been qualified as civil rights

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

as the legal nature of the underlying relationship between the state

and its civil servants could be equated to one under a private

employment contract. In the present case, however, the applicant based

his pension claim on the fact that he had held political offices, as

a Mayor and as a Member of Parliament. The applicant's pension claim

was therefore essentially a public law claim given that the legal basis

for these offices had been democratic elections and not appointment as

a civil servant or an employment contract.

As regards compliance with the "reasonable time" requirement, the

Government submit in particular that in the course of these proceedings

the Constitutional Court had given five decision and the administrative

authorities involved four. In view of these particular circumstances

the Government finds that the applicant's case has been dealt with by

the Austrian authorities within a reasonable time.

This is disputed by the applicant. As regards compliance with

Article 26 (Art. 26) of the Convention he submits in particular that

a complaint to the Administrative Court about the failure of

administrative authorities to act was possible, but no such possibility

existed for complaining about the inertia of the Administrative Court

itself or the Constitutional Court.

In his view Article 6 para. 1 (Art. 6-1) of the Convention

applies to the proceedings at issue. The case-law of the Convention

organs has confirmed that Article 6 (Art. 6) applies to pension claims

of civil servants. The state must be considered as the employer of

civil servants and, consequently, also of politicians. Moreover, from

the remuneration he had received as politician the applicant had made

contributions to the pension scheme. In any event, he had not only

acquired his pension claim by making contributions but also by his

outstanding performance and efforts as a politician.

The Commission finds that the question whether the applicant

could and should have filed a complaint with the Administrative Court

complaining about the inactivity of the Municipal Council in dealing

with his appeal in order to speed up proceedings is a matter related

to the merits of the complaint and cannot be determined at this stage

of the proceedings. This complaint therefore cannot be rejected under

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

domestic remedies.

After an examination of this issue in the light of the parties'

submissions, the Commission considers that it raises questions of fact

and law which can only be determined by an examination of the merits.

It follows that this complaint cannot be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for inadmissibility

have been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint about the length of the proceedings by

which his pension claim was determined;

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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A.G. v. AUSTRIA

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