Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20457/92

by Hermann HAUSSLER

against Germany

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 February 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

S. TRECHSEL

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr.K. ROGGE, 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 1 April 1992 by

Hermann HAUSSLER against Germany and registered on 10 August 1992 under

file No. 20457/92;

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 German citizen born in 1921 and living in

Munich. It follows from his statements and the documents submitted

that the applicant has been receiving since 1 January 1982 a monthly

supplementary pension in the amount of DM 3,200.40 from the Federal

Insurance Office (Versorgungsanstalt des Bundes und der Länder-VBL).

On 30 April 1985 VBL informed the applicant that the pension had

been recalculated on the basis of its amended statutes (19th amendment

of 1 January 1985). The newly calculated pension amounted to DM

2,497.36. However the difference of DM 703.04 would only gradually be

deducted as from 1987 onwards in six steps amounting to each equalling

1/6th DM 117.17. The reduction was effected on the ground that

pensions in general exceeded the last net income of the pensioners

which they received at the time of their retirement. The pensions had

therefore been recalculated in such a manner as to represent a certain

percentage of a fictitious net salary.

In "mid 1985" the applicant brought an action against the VBL

claiming payment of his original pension.

This action was dismissed by the Karlsruhe Regional Court

(Landgericht) on 14 February 1986. The detailed reasons stated on more

than 20 pages in the judgment can be summarised to the effect that,

contrary to the submission of the plaintiff, the amendments of the

statute of the defendant party were valid and the reduction neither

contrary to the principle of good faith (Treu und Glauben) nor to any

higher ranking law.

This judgment was confirmed on appeal by the Karlsruhe Court of

Appeal (Oberlandesgericht) on 3 November 1988.

An appeal on points of law (Revision) was rejected by the Federal

Court (Bundesgerichtshof) on 20 September 1989.

The applicant then lodged a constitutional complaint

(Verfassungsbeschwerde) which was rejected by a group of three judges

of the Federal Constitutional Court (Bundesverfassungsgericht) on

6 November 1991 as being clearly ill-founded.

The Constitutional Court pointed out that the pension in question

was an additional one (zusätzliche) and it had for reasons of social,

personal and financial policies been considered undesirable that the

beneficiaries received a global retirement payment exceeding their last

former net income. The Court also referred to the jurisprudence of the

Federal Court which had in another matter twice dealt with the issues

raised in the applicant's case and had likewise confirmed the validity

of the amendments of the statutes of the VBL and the consequences

resulting therefrom.

Insofar as the Federal Court had with regard to the issues in

question departed to a certain extent from prior jurisprudence the

Constitutional Court considered that case-law was not comparable to

statutory law and that it was subject to possible changes. Therefore

the judgments complained of did not violate the right to the protection

of property nor any other constitutional rights.

COMPLAINTS

The applicant complains that the Federal Constitutional Court did

not grant him a fair hearing in that most of his arguments were

disregarded. Furthermore he considers that the matter was not decided

within a reasonable time.

He also invokes Article 1 of Protocol No. 1 to the Convention in

connection with Article 14 of the Convention. He contests the

necessity of a reduction of his pension and considers himself to be

discriminated against. He further submits that his pension right is

derived from a private insurance contract and any reduction of pension

contrary to the original insurance contract would constitute a

violation of his property right.

THE LAW

1. The Commission has considered the applicant's complaint about the

reduction of his pension under Article 1 of Protocol No. 1 (P1-1) to

the Convention which provides that every person is entitled to the

peaceful enjoyment of his possessions and that no one shall be deprived

of his possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The question as to whether the claim to an old age pension can

be considered a possession within the meaning of the above provision

has already been examined in the Commission's earlier case-law.

In particular the reduction here in question has been dealt with

in an analogous application (No. 21519/93) which the Commission

rejected as being manifestly ill-founded on 30 June 1993 on the ground

that according to the findings of the domestic courts the pension

adjustment complained of had been effected in accordance with statutory

provisions and that there was nothing to show that the pension

reduction complained of amounted to an arbitrary and disproportionate

interference with the right to the peaceful enjoyment of possessions.

The arguments adduced by the present applicant do not contain any

elements that could persuade the Commission to depart from its previous

jurisprudence.

It follows that the complaint under Article 1 of Protocol No. 1

(P1-1) to the Convention must be rejected in accordance with Article

27 para. 2 (Art. 27-2) as being manifestly ill-founded.

2. The applicant further complains under Article 6 (Art. 6) of the

Convention that he was not given a fair hearing.

Article 6 para. 1 (Art. 6-1) provides:

" 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 Commission notes however that the domestic courts in first

and second instance carefully dealt with the arguments submitted by the

applicant and there is nothing to show that he was denied a fair

hearing or did not have adequate opportunity to plead his case.

It follows that the complaint under Article 6 (Art. 6) of the

Convention about the unfairness of the proceedings likewise has to be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention as being manifestly ill-founded.

3. The applicant's last complaint is that his pension claim was not

determined within a reasonable time as required by Article 6 para. 1

(Art. 6-1) of the Convention.

The Commission finds that it cannot, on the basis of the file,

determine the admissibility of the applicant's last complaint at this

stage and considers that it is therefore necessary, in accordance with

Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give

notice of this complaint to the respondent Government.

For these reasons, the Commission by a majority

- DECIDES TO ADJOURN its examination of the complaint about the

length of the proceedings;

- DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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HAUSSLER v. GERMANY

HAUSSLER v. GERMANY

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