Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23242/94

by Erna HABLE

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 11 May 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 23 december 1993

by Erna Hable against Austria and registered on 12 January 1994 under

file No. 23242/94;

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 an Austrian citizen, born in 1933 and living in

Wels. She is represented by Mr. M. Nordmeyer, a lawyer practising in

Wels.

It follows from her statements and the documents submitted that

the applicant got divorced on 21 April 1982. In accordance with

Section 55 (3) of the Marriage Act (EheG) the divorce tribunal, i.e.

the Wels District Court (Kreisgericht), stated that the former husband

was guilty of the breakdown of the marriage.

The ex-husband remarried in August 1982 and died in March 1989.

His inheritance was passed on to his second wife and a child which was

born out of that marriage as well as a child born out of the marriage

with the applicant.

In January 1990 the applicant brought an action against the three

heirs claiming that her former husband's estate was bound to pay her

maintenance. This action was dismissed in first and second instance

but eventually partly granted by the Supreme Court (Oberster

Gerichtshof) on 20 February 1992.

Subsequently the applicant requested her former husband's social

insurance company (Pensionsversicherungsanstalt der Angestellten) to

grant her a widow's pension on account of her former husband's

insurance rights. This request was rejected on 24 August 1992 and an

action was dismissed by the Wels District Court on 5 November 1992.

The court stated that under Section 270 in conjunction with

Section 258 (4) of the Social Insurance Act (ASVG) a divorced woman

could claim a widow's pension on account of her deceased ex-husband's

social insurance if it was established by a court judgment or a

friendly settlement reached in court that the insured person was at the

time of his death obliged to pay maintenance to his former wife. The

District Court pointed out that in accordance with the Supreme Court's

constant jurisprudence the judgment or agreement recognising the

obligation to pay maintenance had to be given or established during the

lifetime of the insured person while in the applicant's case an action

for maintenance payments had been brought after her ex-husband's death.

The requirements of the law were thereby not fulfilled.

This decision was confirmed by the Court of Appeal in Linz on 25

February 1993. This court likewise pointed out that the judgment

complained of was in conformity with constant jurisprudence. Insofar

as the applicant had complained of being discriminated against in

comparison to couples living separated without divorcing the court

stated that married couples were not in a comparable situation to that

of divorced couples. The court further pointed out that the applicant

had had sufficient time to bring an action against her former husband

for maintenance and that the regulation making a widow's pension

dependent on the existence of maintenance judgment at the time of the

death of the insured person was designed to avoid manipulation such as

for example the unjustified recognition of maintenance claims by the

heirs.

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

Court on 11 May 1993. This court pointed out that it did not have to

decide the question whether the requirements for widow's pension had

to be considered as fulfilled if maintenance claims were already

pending in court against the insured person during his lifetime but

judgment was given only after his death. The court admitted that an

amendment of the relevant legal provisions was being prepared according

to which in the future widow's pension could also be claimed if the

divorced husband had in fact paid maintenance to his former wife even

if no judgment obliged him to do so. However, even under the new

future regulation the applicant did not qualify for a widow's pension.

COMPLAINTS

The applicant considers that the wording of the relevant

provisions of Austrian law could be interpreted in her favour. She

also submits that according to opinions expressed in Austrian legal

writing there is no objective justification for differentiating between

divorced women who have sued for maintenance during the lifetime of

their ex-husband and those who have brought such an action after death.

She therefore considers that Article 1 of Protocol No. 1 in conjunction

with Article 14 of the Convention were violated in her case because she

was being discriminated against and that a widow's pension is being

denied to her although it has been established by the Supreme Court

that her former husband was obliged to pay her maintenance.

THE LAW

1. The Commission has first examined the applicant's complaint under

Article 1 of Protocol No. 1 (P1-1) to the Convention which guarantees

the right to peaceful enjoyment of possessions. It observes, however,

that future income constitutes a "possession " only if it has been

earned or where an enforceable claim to it exists (No. 10438/83, Dec.

3.10.84, D.R. 41 p. 170). The applicant's claim to a widow's pension

was denied by the competent Austrian courts. There is nothing to show

that the decisions arbitrarily denied her an existing statutory right.

Consequently she cannot rely on Article 1 of Protocol No. 1 (P1-1).

The complaint should therefore in this respect be rejected as being

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

(Art. 27-2) of the Convention.

2. In so far as the applicant complains of discriminatory treatment,

in the enjoyment of her right to respect for her possessions contrary

to Article 14 of the Convention in conjunction with Article 1 of

Protocol No. 1 (Art. 14+P1-1), the Commission finds that the

differentiation made under Austrian law between on the one hand

divorced women who have during the life-time of their ex-husband

obtained recognition of a maintenance claim and on the other hand those

who raised maintenance claims after their ex-husband's death only, is

objectively justified for the purpose set out in the domestic judgment

complained of. Even if in Austrian legal writing the regulation in

question has been criticised it has to be noted that the applicant got

divorced in April 1982. She has had several years to claim maintenance

from her ex-husband who died in 1989 while the applicant did not bring

an action for maintenance before January 1990.

In the particular circumstances it cannot be found that the

result reached in the applicant's case is disproportionate to the aims

pursued by the legislative regulation in question (cf. No. 15845/89,

Dec. 4.4.90, unpublished).

There is consequently no appearance of a violation of the

provisions invoked by the applicant. In this respect the application

must also be rejected in accordance with Article 27 para. 2 (Art. 27-2)

of the Convention as being manifestly ill-founded.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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HABLE v. AUSTRIA

HABLE v. AUSTRIA

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