THIRD SECTION

FINAL DECISION

Application no. 72719/01 by Esther KOHLS against Germany

The European Court of Human Rights (Third Section), sitting on 6 April 2004 as a Chamber composed of:

Mr I. Cabral Barreto , President , Mr G. Ress , Mr L. Caflisch , Mr P. KÅ«ris ,

Mr R. T ürmen, Mr K . Traja , Mrs A. Gyulumyan, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 23 March 2001,

Having regard to the partial decision of 13 November 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Esther Kohls, is a German national, who was born in 1927 and lives in Wembach-Schönau, Germany. She is represented before the Court by Mr J. Traubner, a lawyer practising in Frankfurt/M.

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

In 1937, following the repression and persecution of Jews in Germany, the applicant, herself of Jewish origin, fled to Argentina. She married there and her two children were born in 1949 and 1960.

In 1965, the applicant and her family returned to Germany.

1. First set of social court proceedings (1986 - 1997)

Between 1986 and 1996, the applicant was involved in social administrative and court proceedings dealing with the correct calculation of pension benefits that she was allegedly entitled to receive under the German statutory old age insurance system. The applicant complained that the time she had spent raising her children in Argentina was not taken into account. Although following a change of law in 1994, parents raising their children outside Germany were entitled to the same pension benefits as parents residing in Germany, this equal treatment only applied for the time before the end of 1949. The social courts rejected the applicant's request on the basis of the Federal Constitutional Court's case-law, which considered this time-limit to be compatible with the German Basic Law.

On 24 July 1997, the Federal Constitutional Court refused to entertain the applicant's complaint. It confirmed that the relevant legal provisions were compatible with the Basic Law and that there was no other legal provision which would allow the time spent raising her children in Argentina to be taken into account when calculating her pension. If at all, this time could only be counted according to Section 250 of the Sixth Book of the German Social Code, which covers cases where individuals were expelled or forced to resettle, in particular between 1945 and 1946, if they are recognised as refugees.

2. Second set of social court proceedings (1997-2003)

On 9 September 1997, the competent authorities rejected the applicant's request that the time spent raising her children in Argentina from 1950 to 1965 be taken into account when calculating her pension pursuant to Section 250 of the Sixth Book of the Social Code. They observed that, as the applicant had not been forcibly retained in Argentina during that time, Section 250 did not apply to her case.

On 19 December 1997, the competent authorities rejected the applicant's administrative complaint.

On 26 May 1998, the Freiburg Social Court rejected the applicant's claim.

On 8 December 1998, the Baden-Württemberg Social Court of Appeal rejected the applicant's appeal and did not grant her leave to lodge further appeal.

On 16 March 1999, the Federal Social Court refused to grant the applicant leave to appeal.

On 19 April 1999, the applicant lodged a complaint with the Federal Constitutional Court.

On 21 March 2000, the Federal Constitutional Court informed the applicant that it would issue a decision towards the end of 2000 or the beginning of 2001.

On 28 May 2003, the Federal Constitutional Court refused to entertain the applicant's complaint. Inter alia , it found that her situation did not fall under Section 250 of the Sixth Book of the Social Code. Her situation could not be compared to that of people who had been prevented from returning to Germany due to coercive measures of other countries or war situations, as the Republic of Germany had never prevented her from returning. Once the German Basic Law had been established and the Federal Republic of Germany had been founded as a democratic State, there was no longer any risk of persecution. On the basis of new pertinent laws, the applicant could have requested compensation. The financial burden occasioned by her return could have been softened by way of instant financial aid granted to refugees wishing to return, which in those times amounted to 6,000 DEM (approximately 3,000 EUR). If refugees chose to stay in their country of exile, the legislature could be expected to assume that they had permanently integrated themselves into the respective economic and social system and did not wish to return to Germany. In such cases, the legislature was then not obliged to take into account the time spent in a foreign country.

The Federal Constitutional Court also did not consider that the applicant was being discriminated in comparison to emigrants of German origin from East European states, who were not able to enter Germany before 1990, nor in comparison to people directly exiled by war.

COMPLAINTS

The applicant complains about the length of the proceedings before the German courts under Article 6 § 1 of the Convention.

THE LAW

On 25 February 2004, the agent of the Government informed the Court that the parties have reached a friendly settlement and asked the Court to strike the application out of the list pursuant to Article 37 § 1 b) of the Convention.

He enclosed a joint declaration signed by himself on 18 February 2004 and by the representative of the applicant on 20 February 2004.

In this declaration, the Federal Republic of Germany, with a view to securing a friendly settlement of the present case, offer to pay EUR 3,500 to the applicant. This payment is not linked to a recognition of a violation of the Convention. This sum is to cover any non-pecuniary damage as well as costs and expenses, and it will be payable within three months from the notification of the decision taken by the Court pursuant to Article 39 of the Convention.

The applicant, represented by her lawyer, accepts the proposal and waives any further claims against the Federal Republic of Germany in respect of the facts of this application, and declares that this constitutes a final settlement of the case.

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Vincent Berger Ireneu Cabral Barreto Registrar President