THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 72719/01 by Esther KOHLS against Germany

The European Court of Human Rights (Third Section), sitting on 13 November 2003 as a Chamber composed of:

Mr I. Cabral Barreto , President , Mr G. Ress , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr B. Zupančič , Mrs A. Gyulumyan , judges , and Mr V. Berger , Section Registrar ,

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

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

The applicant, Ms Esther Kohls, is a German [Note1] 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.

B. Relevant domestic law

The German Social Code is divided into ten books, namely Book One and then Books Three to Eleven.

The Sixth Book of the Social Code deals with the public old-age insurance scheme ( Gesetzliche Rentenversicherung ). In general, all persons pursuing any sort of profession are insured (Sections 1 and 2). Under certain conditions, they may remain eligible for insurance benefits for times where they are prevented from working due to, for instance, illness, injuries or matrimony (Section 3).

According to Section 56 § 1, the time spent raising children during the first years of their life will be taken into account for one parent when calculating his or her pension benefits if the respective child was raised in Germany. The relevant time begins one month after a child’s birth and ends after thirty-six months. More details regarding this matter can be found in Section 249.

Pursuant to the legislature’s attempts to modify the old-age insurance scheme after the German reunification, a Law on Compensation for Injustice in the Social Security System Under the National Socialist Regime ( Wiedergutmachung von NS- Unrecht in der Sozialversicherung , hereafter “Law on Compensation”) acquired effect. This Law on Compensation applied to insured persons who were victims of persecution according to the Federal Act on Compensation for Victims of Nazi Persecution ( Bundesgesetz zur Entschädigung für Opfer der nationalsozialistischen Verfolgung ) and their heirs if they had suffered damages relating to their social security. According to Section 12 a of the Law on Compensation, Section 56 of the Sixth Book of the Social Code also applied to situations where children were raised outside the jurisdiction of the relevant laws if for reasons of persecution, the person raising the child or children was forced to give up his habitual residence in Germany.

COMPLAINTS

The applicant complains under Articles 9 and 14 of the Convention as well as under Article 1 of Protocol No. 1 about the German authorities’ and courts’ refusal to take into account the time she spent living in Argentina when calculating her pension benefits. She also complains about the length of the proceedings before the German courts under Article 6 § 1 of the Convention.

THE LAW

1. The applicant complains that the proceedings before the German courts were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:

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

The Court notes that the application concerns two separate sets of proceedings.

Insofar as the applicant complains about the first set of court proceedings which began in 1986 and ended with a decision of the Federal Constitutional Court in 1997, the Court notes that the applicant made her application to the Court on 23 March 2001. This part of the complaint was thus not lodged within the statutory six months’ time limit.

The second set of court proceedings were initiated within a month after the applicant’s administrative complaint had been rejected by the competent authorities on 19 December 1997 and ended on 28 May 2003 , when the Federal Constitutional Court refused to entertain the applicants’ constitutional complaint. Thus, they lasted for approximately five years and five months.

T he Court considers that it cannot, on the basis of the file, determine the admissibility of the complaint dealing with the second set of proceedings and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

2. The applicant complains that the refusal of the competent authorities and courts to take into account the time she spent in Argentina when calculating her pension benefits violates her right to property under Article 1 of Protocol No. 1, which, as far as applicable, reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

The Court recalls that, even though the Convention does not as such guarantee a right to a State pension or to similar State-funded benefits, where a right to such benefits based on a contributory scheme is provided for in domestic legislation, such right may be treated as a pecuniary right for the purposes of Article 1 of Protocol No. 1 so as to render applicable that provision ( Gaygusuz v. Austria , judgment of 16 September 1996, Reports of judgments and decisions 1996-IV, §§ 39-41). If such a right is guaranteed for by law, it cannot make a difference whether an individual actually contributes to the scheme or if, as is the case for the time people spend raising their children, he is legally treated as if he had contributed.

In the present case, the Court considers that even if the German administrations’ and courts’ refusal to take into account the time the applicant spent raising her children when calculating her pension benefits constitutes an interference within the meaning of Article 1 of Protocol No. 1, this interference was justified.

The Court refers to the Federal Constitutional Court’s decision of 28 May 2003, where that court explained why the applicant’s inability to return to Germany for financial reasons between 1950 and 1965 could not be compared to that of people prevented from returning to Germany due to coercive measures of other countries or war situations. In particular, the Federal Constitutional Court had stressed that, according to German law, the applicant would have been entitled to instant financial aid upon her return, which would have compensated her for the financial burden occasioned by return. Considering that the applicant had stayed in her country of exile for over twenty years, the Federal Constitutional Court found that in cases such as these, the legislature could be expected to assume that a person would not wish to return to Germany and thus was not obliged to take such situations into account for the calculation of pension benefits.

In this context, the Court also recalls the wide margin of appreciation granted to Member States in such matters. In principle, a legislature’s judgment in this connection will be respected unless it is manifestly arbitrary or unreasonable ( Lithgow and Others v. United Kingdom , judgment of 8 July 1986, Series A, no. 102, p. 51, § 122; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, judgment of 29 April 1999, § 75).

The Court does not find that the Federal Constitutional Court’s reasoning, or that of the social courts, was arbitrary or unreasonable. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Insofar as the applicant complains that her rights under Articles 9 and 14 of the Convention were violated, the Court, having examined the documents at its disposal, finds that the competent courts did not base their decisions on considerations relating to the applicant’s religion or origin.

There is therefore no appearance of a violation of the above articles. This part of the application is thus manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning [Note2] the length of the second set of court proceedings;

Declares the remainder of the application inadmissible.

Vincent Berger Ireneu Cabral Barreto Registrar President

[Note1] To be checked.

[Note2] Summarise the complaints without necessarily citing the invoked Convention Articles.