FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38073/97 by H. T. against Germany

The European Court of Human Rights (Fourth Section) , sitting on 11 July 200 as a Chamber composed of

Mr A. Pastor Ridruejo, President , Mr G. Ress, Mr L. Caflisch, Mr J. Makarczyk, Mr I. Cabral Barreto, Mrs N. Vajić, Mr M. Pellonpää, judges , and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 31 July 1997 and registered on 7 October 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a German national, born in 1938 and living in Mettmann .

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

A. Particular circumstances of the case

In a letter of 30 December 1985 addressed to the Rheinprovinz Pension Office ( Landesversicherungsanstalt ), the applicant and her husband, born in 1927, declared that for the purposes of entitlement to a widow’s or a widower’s pension the statutory rules still in force should continue to apply in future (see below, "Relevant domestic law on the pension rules at issue").

On 4 March 1986, following her husband’s death, the applicant applied with the Rheinprovinz Insurance Office for the payment of a survivor’s pension.

On 10 June 1986 the Insurance Office issued a decision granting the applicant a survivor’s pension as from 1 March 1986.  The Office, referring to the relevant provision of the Workers’ Pension (Reform) Act, further stated that in case that the person concerned had other earned income or income in lieu of earned income, the payment of the survivor’s pension was not suspended during the first year after the spouse’s death.  During the second year, the survivor’s pension was reduced by a specific percentage in relation to a dynamic exonerated amount.

On 20 June 1986 the applicant lodged an administrative complaint ( Widerspruch ) with the Pensions Office, which was dismissed on 24 March 1987.

By submissions dated 27 April 1987, the applicant, represented by counsel, instituted proceedings with the Düsseldorf Social Court, challenging the above decisions issued by the Rheinprovinz Pension Office.  She maintained in particular that the underlying legislation, especially the age-limit for opting out of the new system, was unconstitutional, i.e. in breach of the right to property.  In this respect, the applicant noted that, according to information provided by the Federal Ministry for Labour and Social Matters ( Bundesministerium für Arbeit und Soziales ), a constitutional complaint ( Verfassungsbeschwerde ) concerning the above issue was pending before the Federal Constitutional Court.  She suggested that the proceedings before the Social Court be suspended to await the outcome of the said constitutional complaint proceedings.   With her action, the applicant also objected to the calculation of the pension in question.

On 24 June 1987 the Düsseldorf Social Court suspended the proceedings pursuant to Section 251 of the Code of Civil Procedure ( Zivilprozessordnung ).

On 14 August 1987 the Rheinprovinz Pensions Office reassessed the applicant’s survivor’s pension.  Taking her other income into account, the Office suspended the monthly payment of DEM ï€ 967.10.

By submissions of 10 September 1987, the applicant filed an action with the Düsseldorf Social Court against the decision of 14 August 1987. She again suggested that the proceedings be suspended pending constitutional complaint proceedings in a similar case.  The second set of proceedings was, thereupon, also suspended.

On 26 February 1993 the applicant requested the Social Court to resume the suspended proceedings.  She noted that in the meantime the Federal Constitutional Court had not taken any decisions concerning the legal provision at issue in her case. On 17 March 1993 the Social Court informed the applicant that the proceedings had been resumed.

On 22 July 1993 the Social Court inquired with the Federal Constitutional Court about the state of the constitutional complaint proceedings concerning certain aspects of the reform of the rules governing a survivor’s pension.  On 5 August 1993 the Federal Constitutional Court informed the Social Court that two proceedings had terminated in 1987 and that it envisaged rendering a decision in three further cases in 1994.

On 17 September 1993 the Social Court held an oral hearing.  Following discussion, the parties agreed to a further suspension of the proceedings.

On 5 June 1996 the applicant requested the Social Court to resume the proceedings.  She submitted that, having regard to the length of the proceedings before the Federal Constitutional Court and considering her age, she could no longer be expected to wait. On 18 June 1996 the Social Court informed the applicant that the proceedings had been resumed.

On 5 February 1998 the Social Court inquired again with the Federal Constitutional Court about the state of complete proceedings before it. On 18 February 1998 the Federal Constitutional Court dismissed two constitutional complaints.  The Federal Constitutional Court found that the rules introduced by the Survivor’s Pension and Educational Periods Act, in so far as they provided for a suspension of the survivor’s pension payment in case of other earned income or income in lieu of earned income, were compatible with the Basic Law ( Grundgesetz ).

On 7 May 1998 the Social Court forwarded the Federal Constitutional Court's decision to the applicant's counsel and requested him for comments. After a reminder, the applicant's counsel asked for an extension of the time limit. After a further reminder, the applicant's counsel informed the Social Court on 13 October 1998 that he was no longer representing the applicant.

On 17 March 1999 the Social Court dismissed the applicant's action. It found in particular that in 1987 the Federal Constitutional Court had declared the age-limit of 50 years compatible with the Basic Law. The decisions of 1998 had no impact on its decision as they did not deal with the object of the applicant's action.

B. Relevant domestic law

1. Pension rules

Before 1 January 1986 men and women had to meet different conditions for entitlement to a widow’s or a widower’s pension, respectively. While a widow was generally entitled to a widow’s pension, a widower could only obtain payment of a widower’s pension if his late wife had mainly provided for the family’s maintenance. In March 1975 the Federal Constitutional Court had held that, having regard to changes in the role of women in marriage and family and the labour market, the existing rules fixing different conditions for entitlement to a widow’s or a widower’s pension had to be replaced by legislation avoiding discrimination.

On 1 January 1986 the Survivor’s Pension and Educational Periods Act ( Hinterbliebenenrenten - und Erziehungszeiten-Gesetz ) of 11 July 1985, amending the relevant provisions of the Employees’ Pension Act ( Angestelltenversicherungsgesetz ), the Reich Insurance Act ( Reichsversicherungsordnung ) and the Reich Miners’ Act ( Reichknappschaftsgesetz ), entered into force. The Reich Insurance Act, applying to workers, and the Employees’ Pension Act, applying to employees, together with the reform legislation, namely the Workers’ Pension (Reform) Act ( Arbeiterrentenversicherungs-Neuregelungsgesetz ) and the Employees’ Pension (Reform) Act ( Angestelltenversicherungs-Neuregelungsgesetz ), formed the basis of the general old age insurance system ( gesetzliche Rentenversicherung der Arbeiter und Angestellten ).  A widow is entitled to a survivor’s pension after the death of her insured husband, and a widower is entitled to a survivor’s pension after the death of his insured wife.  Moreover, pursuant to the new legislation, a survivor’s earned income or income in lieu of earned income is taken into account. According to the explanatory report, the latter rule was justified on account of the maintenance function of a survivor’s pension (60% of the spouses’ last income).  The reform only concerned pension cases having occurred as from 1 ï€ January 1986.  Furthermore, for a transitional period until 31 December 1988, spouses could opt for the old regime if they had been married before 1 January 1986 and if they were both older than 50 ï€ years at that time. Subsequent reform legislation, including a uniform pension regime for workers and employees, did not affect the substance of the above legislation concerning a survivor’s pension.

2. Code of Civil Procedure

According to Section 251 of the Code of Civil Procedure, a court suspends proceedings upon the request of the parties if such a suspension appears reasonable on account of settlement negotiations or for other important reasons.

THE LAW

The applicant ’s complaint relates to the length of the proceedings, which began on 27 April 1987 and ended on 17 March 1999 when the applicant's action was dismissed by the Düsseldorf Social Court. They therefore lasted nearly 12 years.

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Government reject the allegation. They consider that the length of the proceedings is mainly due to the applicants' requests to suspend the proceedings.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant ’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Vincent Berger Antonio Pastor Ridruejo Registrar President