AS TO THE ADMISSIBILITY OF

                      Application No. 16717/90

                      by Dietmar PAUGER

                      against Austria

      The European Commission of Human Rights sitting in private on

9 January 1995, the following members being present:

           MM.   H. DANELIUS, Acting President

                 C.L. ROZAKIS

                 S. TRECHSEL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 E. KONSTANTINOV

                 G. RESS

           Mr.   H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 14 February 1990

by Dietmar PAUGER against Austria and registered on 13 June 1990 under

file No. 16717/90;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having regard to the observations submitted by the respondent

Government on 28 January 1994 and the observations in reply submitted

by the applicant on 21 March 1994 and 28 March 1994;

      Having deliberated;

      Decides as follows:

THE FACTS

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

summarised as follows.

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

professor residing in Graz.

A.    Particular circumstances of the case

      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.

      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.

      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).

      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).

      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.

      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 transitory 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.

      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.

      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.

      On 22 February 1986 the applicant lodged a complaint with the

Constitutional Court.  He submitted that the transitory 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.

      On 13 October 1986 the Constitutional Court instituted

proceedings for the examination of the constitutionality of Section 40a

of the Pensions Act, as set out in the Federal Gazette No. 406/1984.

In February 1987 several Regional Governments and the Federal

Government submitted their observations in writing.  However, on

29 June 1987 the Constitutional Court discontinued these proceedings,

as it found that Section 40a had meanwhile been replaced by the 8th

Amendment to the Pensions Act.

      On 1 July 1987 the Constitutional Court again 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.  Observations of several Regional Governments and the Federal

Government were submitted in October and November 1987.  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.

      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

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

third of his full pension rights.

      On 11 August 1988 the applicant introduced a new complaint with

the Constitutional Court.  Again he submitted that the transitory

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

pension rights until 1 January 1995, were unconstitutional.  On

30 September 1988 the Constitutional Court informed the applicant that

the Regional Government had not filed any submissions.  On 21 and

29 June 1989 and on 3 October 1989 the Constitutional Court deliberated

on the applicant's complaint.  On 3 October 1989 the Constitutional

Court dismissed the applicant's complaint without an oral hearing.  It

held that the transitory arrangements reflected a continuing change in

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

to the principles of equality.

      In his application form, submitted on 28 May 1990, the applicant

informed the Secretariat of the Commission that he had the intention

of also introducing a communication to the Human Rights Committee

concerning the same facts as his application to the Commission.

On 5 June 1990 the applicant introduced such a communication invoking

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".  He informed the Commission's Secretariat on 12 June 1990

thereof.  On 28 March 1991, in its decision on the admissibility of the

applicant's communication, the Human Rights Committee found that it was

not prevented from examining the communication by the fact that he had

also introduced an application with the Commission.  The communication,

while emanating from the same factual situation as the application,

addresses other legal issues and did not constitute "the same matter".

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

1.    The Pensions Act

      The pension scheme for civil servants is regulated by the

Pensions Act 1965 (Pensionsgesetz 1965).

      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.

      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).

      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."

      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."

2.    Proceedings before the Austrian Constitutional Court

      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.

      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).

      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).

      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."

      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 its

repeal, the case in point excepted, unless the Constitutional Court in

its decision decides otherwise.  If the Constitutional Court has in its

repeal decision 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.

COMPLAINTS

1.    The applicant complains that the administrative authorities which

determined his claim for a widower's pension could not be regarded as

tribunals within the meaning of Article 6 para. 1 of the Convention.

2.    He also complains that, contrary to Article 6 para. 1 of the

Convention, the Constitutional Court did not hold a hearing of his

complaint lodged on 11 August 1988.

3.    He complains further under Article 6 para. 1 of the Convention

that the proceedings before the Constitutional Court concerning his

complaint of 11 August 1988 were not fair.  He submits that the Court

did not give sufficient reasons for its decision.  He also submits that

the principle of equality of arms was violated in that the

Constitutional Court neither gave him the opportunity to comment on the

facts upon which it was to base its decision, nor discussed questions

of law with the parties.  Thus, the conduct of the proceedings by the

Court also gave rise to doubts as to its impartiality.

4.    Lastly, he complains that the proceedings were not concluded

within a reasonable time, as required by Article 6 para. 1 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 14 February 1990 and registered

on 13 June 1990.

      On 11 October 1993 the Commission decided to communicate the

application to the respondent Government and to request them to submit

their written observations on the admissibility and merits.

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

On 21 March 1992 the applicant submitted his observations in reply.

On 28 March 1994 the applicant supplemented those observations.

THE LAW

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

Convention that his widower's pension claim was not decided by a

tribunal within the meaning of this provision, that he had no hearing

before the Constitutional Court and that the proceedings before the

Constitutional Court were unfair and not concluded within a reasonable

time.

      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."

2.    The Commission has first to examine whether it is prevented by

virtue of Article 27 para. 1 (b) (Art. 27-1-b) of the Convention from

dealing with the present application.

      The Government maintain that pursuant to Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention, the Commission is barred from dealing

with the complaints raised by the applicant because the matter has

already been submitted to another procedure of international

investigation, namely the procedure before the Human Rights Committee.

They consider it irrelevant that before the Human Rights Committee the

applicant complained under Article 26 (Art. 26) of the International

Covenant on Civil and Political Rights about a violation of his right

to equal treatment before the law, while in his application to the

Commission he complained of a violation of Article 6 para. 1

(Art. 6-1) of the Convention.  Rather, it is decisive that the same

facts were submitted to another international authority.  Thus, the

scope of an application to the Commission is not limited to the

Convention rights invoked by an applicant, as it is the task of the

Convention organs to review the facts of an application brought before

them in respect of all rights guaranteed by the Convention.

      The applicant does not share this view.

      Article 27 para. 1 (b) (Art. 27-1-b) of the Convention provides

as follows:

      "The Commission shall not deal with any petition submitted

      under Article 25 (Art. 25) which: ...

      (b) is substantially the same as a matter which has already

      been examined by the Commission or has already been

      submitted to another procedure of international

      investigation or settlement and if it contains no relevant

      new information."

      The Commission recalls that it is against the letter and spirit

of the Convention if the same matter is simultaneously submitted to two

international institutions.  Article 27 para. 1 (b) (Art. 27-1-b) of

the Convention aims at avoiding the plurality of international

procedures concerning the same case.  In considering this issue, the

Commission needs to verify whether the applications to the different

institutions have substantially the same content (cf. No. 17512/90,

Dec. 30.6.92 and 6.7.92, and No. 16358/90, Dec. 12.10.92, D.R. 73).

      In this connection, the Commission considers that the applicant

did not submit substantially the same matter as raised in his

application before the Commission to the Human Rights Committee,

because the complaints raised in the respective proceedings were

different.  While before the Human Rights Committee he complained of

discrimination against him, before the Commission he complains about

issues related to the proceedings before the Austrian authorities and

courts.

      Consequently, the Commission is not prevented by virtue of

Article 27 para. 1 (b) (Art. 27-1-b) of the Convention from dealing

with the application.

3.    The Government submit further that the application is

inadmissible because the applicant failed to exhaust domestic remedies,

as required by Article 26 (Art. 26) of the Convention. They point out

that he did not lodge a complaint with the Administrative Court against

the Regional Government's decision of 21 June 1988.

      The applicant submits that such a complaint would have been an

ineffective remedy.  The Administrative Court could only have examined

the Regional Government's decision from the point of view of ordinary

law, but was not entitled to examine the constitutionality of laws.

Given the unequivocal wording of part II para. 2 of the 8th Amendment

to the Pensions Act, an appeal to the Administrative Court would have

had no prospect of success.

      The Commission recalls that for the purpose of complying with

Article 26 (Art. 26) of the Convention, only such remedies are to be

taken into account as offer the possibility of an effective redress of

the alleged violation of the Convention (see Eur. Court H.R., Van

Oosterwijck judgment of 6 November 1980, Series A no. 40, p. 13, para.

27).

      The Commission notes that the applicant did not lodge a complaint

with the Administrative Court against the decision of the Regional

Government of 21 June 1988.  On 11 August 1988 the applicant, however,

lodged a complaint with the Constitutional Court requesting that the

Regional Government's decision be quashed on the ground that an

unconstitutional provision had been applied. There are thus two

separate aspects to be considered by the Commission:

a.    As regards the applicant's complaint that his case had not been

decided by a tribunal within the meaning of Article 6 para. 1

(Art. 6-1), the Commission recalls that the Administrative Court may

be qualified as a tribunal within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention since it could have reviewed the correct

application of the Austrian Pensions Act to the applicant's case (see

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

268-A, pp. 13-14, paras. 31-32; No. 16922/90, Fischer v. Austria, Comm.

Report 9.9.93, paras. 43-46).

      As regards his submission that, given the unequivocal provision

of the Pensions Act, a complaint to the Administrative Court would have

had no prospect of success, the Commission observes that Article 6

para. 1 (Art. 6-1) neither guarantees a specific result of the

proceedings in question, nor guarantees a right of access to a court

with competence to invalidate or override a law (No. 11763/85, Dec.

9.3.89, D.R. 60 p. 128).

      It follows that in this respect the applicant has not satisfied

the requirement as to exhaustion of domestic remedies contained in

Article 26 (Art. 26) of the Convention.  This part of the application,

therefore, is inadmissible by virtue of Article 27 para. 3

(Art. 27-3) of the Convention.

b.    As regards the applicant's complaint concerning the proceedings

before the Constitutional Court, the Commission finds that a complaint

to the Administrative Court cannot be considered an effective domestic

remedy.  Consequently, the applicant has complied with the requirement

of exhaustion of domestic remedies under Article 26 (Art. 26) of the

Convention in respect of the remainder of the application.

4.    With regard to the proceedings before the Constitutional Court,

the applicant complains that, contrary to Article 6 para. 1

(Art. 6-1) of the Convention, the Constitutional Court did not hold a

hearing in regard to his complaint lodged on 11 August 1988.

      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."

      As regards the applicability of Article 6 para. 1

(Art. 6-1) of the Convention to the proceedings at issue, the

Government submit that in his complaint to the Constitutional Court of

11 August 1988 the applicant had only 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 asserted 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.  The Government

submit further that the claim to a widow's or widower's pension on the

demise of a civil servant cannot be regarded as a civil right within

the meaning of Article 6 para. 1 (Art. 6-1) as it is, by its very

nature, a claim under public law and cannot be compared to an

entitlement under a private pension scheme.

      The applicant submits that his complaint to the Constitutional

Court was directly linked to the proceedings concerning the

determination of his civil rights, because, if successful, his right

to a full widower's pension would have existed from the outset.

      The Government also contend that the Austrian reservation to

Article 6 (Art. 6) of the Convention would prevent the Commission from

examining the applicant's complaint about the lack of a hearing before

the Constitutional Court on his complaint of 11 August 1988.  In any

event, the absence of a hearing before the Constitutional Court does

not violate Article 6 para. 1 (Art. 6-1) of the Convention.  The

Constitutional Court's practice only to hold a hearing in exceptional

cases presented by individuals must have been known to the applicant,

who, however, did not expressly request a hearing.  He, therefore, must

be deemed to have waived his right to a hearing.  There was also no

public interest in holding a hearing, since the Regional Government did

not submit any observations on the applicant's complaint.

      These views are disputed by the applicant.

      The Commission, having regard to the parties' submissions, and

in the light of the criteria established by the Convention organs,

considers that this part of the application raises issues of fact and

law that can only be resolved by an examination of the merits.  This

part of the application cannot, therefore, be declared manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.  No other grounds for declaring it inadmissible have been

established.

5.    The applicant also complains under Article 6 para. 1

(Art. 6-1) of the Convention that the proceedings before the

Constitutional Court concerning his complaint of 11 August 1988 were

not fair.

      Assuming that Article 6 para. 1 (Art. 6-1) of the Convention, in

particular the procedural guarantees contained therein, apply to the

proceedings before the Constitutional Court, the Commission finds that

this complaint is, in any event, manifestly ill-founded for the

following reasons:

      The applicant submits that the Constitutional Court did not give

sufficient reasons for its decision.

      In this respect the Commission recalls that it does not follow

from Article 6 para. 1 (Art. 6-1) of the Convention that the reasons

given by a court should deal specifically with all points which may

have been considered by one party to be essential to his case; a party

does not have an absolute right to require reasons to be given for

rejecting each of his arguments (No. 10938/84, Dec. 9.12.86, D.R. 50

p. 98).

      The Commission observes that the Constitutional Court, in its

decision of 3 October 1989, found that the transitory arrangements did

not violate the principle of equality as they reflected a continuing

change in society regarding equality of sexes.  In these circumstances

the Commission considers that the Constitutional Court has given

sufficient reasons for its decision.

      The applicant also submits that the principle of equality of arms

was violated in that the Constitutional Court neither gave him the

opportunity to comment on the facts upon which it was to base its

decision, nor discussed questions of law with the parties.

      In this respect the Commission recalls that the principle of

equality of arms is only one feature of a wider notion of a fair

hearing and implies that each party shall have a reasonable opportunity

of presenting his case to the court under conditions which do not place

him at a substantial disadvantage vis-à-vis his opponent (see Eur.

Court H.R., Dombo Beheer B.V. judgment of 27 October 1993, Series A no.

274, p. 19, para. 33).

      The Commission notes that in the proceedings before the

Constitutional Court on his complaint of 11 August 1988 the Federal

Government did not submit any observations.  The Commission therefore

considers that, in the proceedings before the Constitutional Court, no

problem arose as to the equality of arms between the applicant and the

the defendant, the Regional Government.

      The applicant also submits that the conduct of the proceedings

by the Court gave rise to doubts as to its impartiality.  However, the

Commission finds that the applicant has failed to furnish any element

to substantiate his doubts.

      Consequently, there is no appearance of a violation of the

applicant's right to a fair hearing under Article 6 para. 1

(Art. 6-1) of the Convention.

      It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

6.    Lastly, the applicant complains that the proceedings were not

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

(Art. 6-1) of the Convention.

      The Government submit that, even if Article 6 (Art. 6) of the

Convention may be said to be applicable, the applicant's case was

decided by the Constitutional Court within a reasonable time as

required by paragraph 1 of this provision.  They submit that the

proceedings started either on 25 May 1988, when the Constitutional

Court's decision to quash the Regional Government's decision of 7

January 1986 was served on the Regional Government, or on 13 May 1985,

when the applicant raised his pension claim, and ended with the

Constitutional Court's decision of 3 October 1989.  In both cases the

duration was not excessive, as the issue decided by the Constitutional

Court was a highly complex one, which affected the legal situation in

Austria in general, and no delays could be attributed to the

authorities.

      The applicant submits that the proceedings started on 24 August

1984.  He considers that their duration was excessive.  Delays occurred

in the proceedings before the Constitutional Court, which only

determined on 16 March 1988 his complaint of 22 June 1986.  Moreover,

the Constitutional Court could have dealt with the issue of his

complaint of 11 August 1988 already in the earlier proceedings.

      The Commission considers that the applicant's complaint relates

to two distinct sets of proceedings.  The first concerned his request

of 24 August 1984 and terminated with the Constitutional Court's

decision of 23 February 1985, while the second concerned his request

of 13 May 1985 for a widower's pension.

a.    As regards the proceedings on the applicant's request of 24

August 1984, the Commission recalls that under Article 26 (Art. 26) of

the Convention it can only deal with this complaint within a period of

six months from the date on which the final decision was taken.  The

Commission notes that these proceedings terminated on 23 February 1985,

but that the present application was lodged with the Commission on

14 February 1990.

      It follows that the applicant has not complied with the six month

time-limit stipulated in Article 26 (Art. 26) of the Convention.  This

part of the application must, therefore, be rejected under Article 27

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

b.    As regards the applicant's complaint about the length of the

proceedings on his request of 13 May 1985, the Commission, assuming

that Article 6 para. 1 (Art. 6-1) of the Convention applies to these

proceedings, finds that this complaint is manifestly ill-founded for

the following reasons:

      The Commission finds that the proceedings at issue started on

13 May 1985, when the applicant applied for a widower's pension.  They

ended with the Constitutional Court's decision of 3 October 1989.  The

proceedings thus lasted four years, four months and three weeks.

      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 having regard to its complexity, the

conduct of the parties and the conduct of the authorities dealing with

the case (see Eur. Court H.R., Ficara judgment of 19 February 1991,

Series A no. 196-A, p. 9, para. 17).

      The Commission finds that the proceedings before the Regional

Education Council and the Regional Government were simple.  However,

the issue in the Constitutional Court proceedings was a complex one.

It concerned questions relating to the constitutionality of provisions

suspending pension rights, as well as the constitutionality of

transitory provisions for new claims to a widower's pension raising

issues under the principle of equality.

      The Commission finds that no delays may be attributed to the

applicant.

      As regards the conduct of the Austrian authorities, the

Commission notes that the applicant's case was dealt with at two

instances in two sets of proceedings. In particular, the Regional

Government twice decided speedily on the applicant's appeal.  The

Constitutional Court decided on the applicant's complaint of 22

February 1986 on 17 March 1988, that is after two years and one month.

During this period the Constitutional Court instituted two procedures

examining the constitutionality of Section 40a of the Pensions Act, one

which lasted from 13 October 1986 until 29 June 1987, and the other

which lasted from 1 July 1987 until 16 March 1988. In the latter, it

held a hearing on 9 December 1987.  There were no significant periods

of inactivity during the proceedings.

      In these circumstances and taking into account the special

features of constitutional court proceedings, the Commission finds that

the proceedings at issue in the present case did not exceed a

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

the Convention.

      This part of the application is therefore manifestly ill-founded

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

      For these reasons, the Commission by a majority

      DECLARES ADMISSIBLE, without prejudging the merits of the case,

      the applicant's complaint about the lack of a hearing before the

      Constitutional Court on his complaint of 11 August 1988;

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission      Acting President of the Commission

       (H.C. KRÜGER)                        (H. DANELIUS)