FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22858/04 by Pawel ALWIN against Germany

The European Court of Human Rights (Fifth Section), sitting on 18 March 2008 as a Chamber composed of:

Peer Lorenzen , President, Karel Jungwiert , Volodymyr Butkevych , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 16 June 2004,

Having regard to the factual information submitted by the Government at the request of the Judge Rapporteur pursuant to Rule 49 § 3 (a) of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Pawel Alwin, is a Polish and German national who was born in 1936 and lives in Bydgoszcz .

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

A. The circumstances of the case

From 1 August 1988 the Wuppertal Railway Social Insurance Office (the “Insurance Office”) paid the applicant an invalidity pension based on a bilateral agreement between Germany and Poland (see “Relevant domestic law” below) and informed him that he was to disclose any changes in his address as the pension entitlement depended on him continuing to reside in Germany.

On 20 January 1999 the Insurance Office received an anonymous letter that the applicant had transferred his domicile to Poland and that he only travelled to Germany to receive his pension.

On 21 May 1999 the Insurance Office asked the applicant whether his permanent domicile was in Poland or in Germany , but the applicant failed to provide the required information.

On 20 September 1999 the Bydgoszcz registration office ( Einwohnermeldeamt ) informed the Insurance Office that since 1 March 1991 the applicant had been domiciled in Bydgoszcz .

On 22 December 1999 the Insurance Office informed the applicant of its intention to cease the payment of the invalidity pension as of January 2000. Moreover, it ordered him to reimburse the payments effected between 1 March 1991 and 31 December 1999 amounting to some DEM 147,200. The Insurance Office served its decision on the applicant ’ s address in Poland . The applicant ’ s wife acknowledged receipt of the decision.

On 25 January 2000 the applicant lodged an administrative appeal against that decision. He alleged inter alia that he had not received the decision as he no longer lived with his wife.

On 29 January 2001, relying on the information provided by the Bydgoszcz registration office about the applicant ’ s domicile, the Insurance Office rejected the administrative appeal.

On 24 April 2001 the applicant brought an action before the Frankfurt Social Court to have the decision of the Insurance Office annulled.

On 31 July 2001 the Frankfurt Social Court requested the Berlin Social Court to hear two witnesses.

On 24 October 2001 the Berlin Social Court heard those witnesses. The applicant, although he had been informed of the hearing, did not appear.

O n 16 June 2004 the applicant lodged his application before the Court.

On 2 March 2007 the applicant received the Frankfurt Social Court ’ s summons to the hearing scheduled for 11 May 2007.

On 11 May 2007 the Social Court held the hearing, which the applicant did not attend, and dismissed the applicant ’ s action, arguing that he had acted with gross negligence.

The judgment was served on the applicant by post.

On 17 July 2007 and on 26 September 2007 the Court requested the applicant to inform the Court about the outcome of the proceedings before the Social Court .

On 30 October 2007 the Court received the applicant ’ s letter in which he, without further comments, submitted a copy of the Social Court ’ s judgment.

On 18 December 2007 the German Government informed the Court that the judgment of the Social Court had not yet become final as the applicant had not returned the acknowledgment of the judgment ’ s receipt to the Social Court .

B. Relevant domestic law

1. The Polish-German Agreement on Pensions of 9 October 1975

This bilateral agreement establishes that persons who moved to Germany by 31 December 1990 could receive their pension from a German insurance company. The agreement applies only as long as the pensioner has his domicile in Germany .

2. Provisions governing the suspensive effect of legal remedies

Pursuant to section 80 § 1 of the Code of Administrative Court Procedures administrative appeals and actions for annulment have suspensive effect. Administrative acts may only be enforced if they have become final or if legal remedies to challenge these acts have no suspensive effect.

3. No obligation to pay interest in the case of reimbursement of unlawfully obtained pensions

The German law does not provide for a party to pay interest in cases where he or she is found liable to reimburse unlawfully obtained pension payments.

COMPLAINTS

1. The applicant complained about the outcome of his proceedings before the Insurance Office and the Frankfurt Social Court .

2. The applicant also complained about the length of the proceedings.

THE LAW

1. The applicant complained about the outcome of the social proceedings instituted against him by the Insurance Office.

The Court recalls that pursuant to Article 35 § 1 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.

It notes that the judgment of the Frankfurt Social Court has not yet become final and that it is still open to the applicant to appeal that decision.

The Court therefore considers the applicant ’ s complaint premature in this respect.

Consequently, this part of the application is inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

2. The applicant further complained about the length of the social proceedings.

The Court finds that the complaint falls to be examined under Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court notes that the period to be considered began on 25 January 2000 when the applicant lodged his administrative appeal (see Janssen v. Germany , no. 23959/94, § 40 , 20 December 2001 ; König v. Germany , judgment of 28 June 1978, Series A no. 27, § 98) . It also observes that the judgment of the Frankfurt Social Court of 11 May 2007 has not yet become final and that therefore the proceedings are still pending. Up to the present, the length of the proceedings amounted therefore to some eight years for proceedings at two instances.

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court observes at the outset that the proceedings concerned the reimbursement of a pension of a considerable amount which, according to the German authorities, the applicant had unlawfully received. They considered that the applicant, despite his obligation to provide the Insurance Office with the necessary information concerning the change of his domicile, had failed to do so. The Court notes that when the Insurance Office requested the applicant to give information regarding his domicile, the applicant did not react. It was thus the applicant ’ s own conduct before the Insurance Office which gave rise in the first place to the repayment order underlying the proceedings.

Furthermore, the applicant attempted to obstruct the Insurance Office from serving its decision on him in that he changed his postal address during the proceedings without informing the Insurance Office.

During the administrative appeal proceedings, the Insurance Office again requested the applicant whether he had transferred his permanent residence to Poland , but the applicant remained silent.

As to the applicant ’ s conduct before the Social Court , the Court observes that the applicant failed to cooperate with it. First, he did not attend the hearing of the witnesses which, at the Frankfurt Social Court ’ s request had been held by the Berlin Social Court thus giving him a better opportunity to reach the court. In this connection, the Court considers that the applicant ’ s failure to attend this hearing inevitably prolonged the proceedings as the Social Court was required to serve the transcripts of the hearings on the applicant in Poland in order to give him the possibility to comment on the witnesses ’ submissions. Moreover, it notes that the applicant also failed to attend the final hearing before the Social Court on 11 May 2007.

The Court further observes that after the Social Court rendered its judgment on 11 May 2007 it was again the applicant ’ s behaviour which obstructed the termination of the proceedings as he did not return the acknowledgment receipt to the Social Court . Thus the judgment has neither become final or enforceable nor subject to appeal.

The applicant did not substantiate any procedural shortcomings in the proceedings before the Social Court . In this connection, the Court observes that the Social Court was prevented from deciding the applicant ’ s case until he had commented on the question of the hearing of the witnesses. However, the applicant did not inform the Court about the moment in which he submitted his comments to the Social Court and, hence, enabled it to decide on his case.

As to what was at stake for the applicant, regard must be had to the fact that under German social law, th e applicant is obliged neither t o reimburse the pension payments of a considerable amount until a final decision is taken nor to pay interest on unlawfully obtained pension payments if he is found liable to reimburse them (see “Relevant domestic law” above).

In these circumstances, the applicant must be held responsible for the delay in the proceedings.

It follows that this part of the application must be likewise rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar              President