Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24872/94

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

Mrs. G.H. THUNE

Mr. 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 7 April 1994 by

Dietmar PAUGER against Austria and registered on 10 August 1994 under

file No. 24872/94;

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 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

1. On 23 June 1984 the applicant's first wife died. She had been

employed as a school teacher in the civil service of the Region of

Styria.

Since November 1985 the applicant is entitled to a widower's

pension, calculated on the basis of the transitory provisions of part

II para. 2 of the 8th Amendment to the Pensions Act (Pensionsgesetz),

which until January 1995 only provides for a reduced widower's pension.

In the course of proceedings for the granting of his widower's

pension, the applicant lodged a complaint with the Constitutional Court

(Verfassungsgerichtshof) in which he complained that the transitory

provisions of part II para. 2 of the 8th Amendment to the Pensions Act

were discriminatory and, therefore, unconstitutional. On

3 October 1989 the Constitutional Court dismissed this complaint. The

Constitutional Court held that the transitory arrangements reflected

a continuing change in society regarding equality of sexes and, thus,

were not contrary to the principle of equality.

2. With regard to the above proceedings, the applicant has already

introduced an application to the Commission (No. 16717/90), complaining

under Article 6 para. 1 of the Convention about the length and alleged

unfairness of the proceedings regarding his widower's pension.

In connection with the aforementioned proceedings, the applicant

also introduced a communication to the Human Rights Committee under

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.

In his communication he complained that the transitory provisions which

only entitled men during the transitory period to a reduced widower's

pension were discriminatory. On 30 March 1992 the Human Rights

Committee found a violation of Article 26 of the International Covenant

on Civil and Political Rights. It held that the granting of a reduced

widower's pension to the applicant, calculated on the basis of the

transitory provisions of the 8th Amendment to the Pensions Act,

constituted discrimination against the applicant on the ground of sex.

3. On 4 October 1991 the applicant remarried.

On 23 October 1991 the Styria Regional Education Council (Landes-

schulrat), pursuant to Section 21 para. 3 of the Pensions Act, commuted

the applicant's right to a widower's pension and granted a one-off

payment in the amount of AS 423,059. It found that, as the applicant

had remarried, he was entitled to a one-off payment in the amount of

70 monthly pension payments. As a basis for the calculation, the

Education Council took the pension payments the applicant received at

the time of his remarriage, i.e. two thirds of his full pension right.

On 8 November 1991 the applicant appealed against this decision.

He submitted that the calculation of the one-off payment had to be

based on his full pension right and not on the reduced payments he

received. On 9 January 1992 the Styria Regional Government

(Landesregierung) dismissed his appeal.

On 28 September 1993 the Administrative Court (Verwaltungs-

gerichtshof), upon a complaint by the applicant, quashed the Regional

Government's decision. The Administrative Court found that the one-off

payment had to be seen as a single payment of the monthly instalments

the applicant would receive in the years following his remarriage.

Therefore, the development of his pension right during this period had

to be taken into account. As the applicant would have been entitled

from 1 January 1995 onwards to his full pension right, the 70

instalments had to be calculated differently according to the dates of

reference. Therefore, the instalments which would correspond to the

pension payments before January 1995 had to be calculated on the basis

of his reduced pension right and the remainder on the basis of his full

pension right.

On 13 December 1993 the Regional Government, following the

Administrative Court's decision, quashed the Regional Education

Council's decision of 23 October 1991.

On 5 January 1994 the Regional Education Council decided again

on the applicant's request, this time calculating the one-off payment

in accordance with the Administrative Court's decision. Thus, the one-

off payment was raised to AS 500,612.

B. Relevant domestic law

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."

Section 21 para. 3 of the Pensions Act, as amended by the 8th

Amendment to the Pensions Act, Federal Law Gazette 426/1985, reads as

follows:

"The surviving spouse of a civil servant who remarries is

entitled to a one-off payment replacing his pension right, in the

amount of seventy monthly pension payments to which he or she is

entitled at the time of the new marriage."

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."

COMPLAINTS

The applicant complains about discrimination against him on the

ground of sex in that the Austrian authorities only granted him a

reduced one-off payment replacing his right to a widower's pension,

calculated in accordance with the transitory provisions of part II

para. 2 of the 8th Amendment to the Pensions Act, whereas widows would

receive a full one-off payment. He invokes Article 6 para. 1 of the

Convention and Article 1 of Protocol No. 1, both in conjunction with

Article 14 of the Convention.

THE LAW

The applicant complains of discrimination on the ground of sex

in that he was only granted a reduced one-off payment replacing his

right to a widower's pension, whereas women in such a situation would

receive a full one-off payment. He invokes Article 6 para. 1

(Art. 6-1) of the Convention and Article 1 of Protocol No. 1 (P1-1),

both in conjunction with Article 14 (Art. 6-1+14, P1-1+14) of the

Convention. These provisions respectively guarantee, inter alia, the

right to a fair hearing in the determination of civil rights, the right

to the peaceful enjoyment of possessions and freedom from

discrimination in the securement of Convention rights.

The Commission notes that the Human Rights Committee gave a

decision on 30 March 1992 in relation to a communication made by the

applicant. The Commission has to examine whether, pursuant to Article

27 para. 1 (b) (Art. 27-1-b) of the Convention, it is prevented from

dealing with the present application because of that decision.

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 concern substantially the same person, facts and

complaints (cf. No. 11603/85, Dec. 20.1.87, D.R. 50, p. 228 and 251;

No. 17512/90, Decs. 30.6.92 and 6.7.92, and No. 16358/90,

Dec. 12.10.92, D.R. 73).

The Commission notes that upon a complaint lodged by the

applicant in the course of the proceedings for the grant of a widower's

pension, the Constitutional Court on 3 October 1989 determined the

issue of the constitutionality of the transitory provisions of the 8th

Amendment to the Pensions Act. The Constitutional Court found that

these provisions, which led to the grant of a reduced widower's pension

to the applicant, were not discriminatory and were thus in accordance

with the Austrian Constitution.

The Commission notes further that thereupon the applicant lodged

a communication with the Human Rights Committee, complaining under

Article 26 of the International Covenant on Civil and Political Rights

that the transitory provisions were discriminatory. On 30 March 1992

the Human Rights Committee found a violation of Article 26 of the

International Covenant on Civil and Political Rights. It held that the

grant of a reduced widower's pension to the applicant, calculated on

the basis of the transitory provisions, constituted discrimination

against the applicant on the ground of sex.

The Commission observes that while the applicant's communication

to the Human Rights Committee related to discrimination with regard to

his entitlement to a widower's pension, his present application to the

Commission concerns discrimination regarding a one-off payment

replacing this widower's pension, calculated in accordance with the

transitory provisions of the 8th Amendment to the Pensions Act.

Nevertheless, the Commission finds that the applicant's

communication to the Human Rights Committee and his present application

concern essentially the same issue, namely discrimination, both as

regards his claim to a widower's pension and as regards the application

of transitory provisions to his pension right.

It follows that the Commission is prevented from dealing with the

present application by virtue of Article 27 para. 1 (b) (Art. 27-1-b)

of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (H. DANELIUS)

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PAUGER v. AUSTRIA

PAUGER v. AUSTRIA