FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 24098/09 by Werner AUERSWALD against Germany

The European Court of Human Rights ( Fifth Section ), sitting on 6 September 2011 as a Committee composed of:

Mark Villiger , President, Isabelle Berro-Lefèvre , Ann Power , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 2 May 2009 ,

Having regard to the comments submitted by the German Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Werner Auerswald , is a German national who was born in 1936 and lives in Marienberg . He was represented before the Court by Mr M. Huscher , a lawyer practising in Berlin . The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling ‑ Vogel, Ministerialdirigentin , of the Federal Ministry of Justice, and by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat , of the Federal Ministry of Justice.

The circumstances of the case

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

The applicant, a business economist by profession, contributed to the compulsory general pension scheme and the optional supplementary pension scheme of the former German Democratic Republic. He receives monthly old-age pension benefits amounting to a total of 1,153.43 euros (EUR) including disability pension benefits .

On 7 September 2001 the Federal Insurance Fund for Salaried Employees ( Bundesversicherungsanstalt für Angestellte ) fixed the applicant ’ s old-age pension claims.

On 18 September 2001 the applicant lodged an objection against that decision. On 8 February 2002 the objection was rejected.

On 12 March 2002 the applicant brought an action in the Chemnitz Social Court against the calculation of his old-age pension claims, namely the crediting of his disability pension against his old-age pension claims.

On 21 April 2004 the Chemnitz Social Court rejected the applicant ’ s action.

On 19 October 2004 the Saxon Social Court of Appeal rejected the applicant ’ s appeal and refused to grant leave to appeal on points of law.

On 24 August 2005 the Federal Social Court declared inadmissible the applicant ’ s complaint against the refusal to be granted leave to appeal on points of law ( Nichtzulassungsbeschwerde ). It held that the applicant had not met the legal conditions of appeal as he had failed to establish the fundamental importance of his case in accordance with the requirements of the German Social Courts Act ( Sozialgerichtsgesetz ).

On 4 October 2005 the applicant lodged a constitutional complaint.

On 7 October 2008 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint. It held that the constitutional complaint was inadmissible as the applicant had failed to exhaust all available remedies in accordance with the formal requirements of domestic law. There were no indications that the Federal Social Court had applied exaggerated or arbitrary admissibility requirements when it declared inadmissible the applicant ’ s complaint against the refusal to be granted leave to appeal on points of law. Moreover, the applicant had not substantiated his constitutional complaint in this respect as he had failed to submit the statement of grounds for the appeal on points of law ( Begründung der Nichtzulassungsbeschwerde ).

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings. He claimed that the length was attributable exclusively to the Federal Constitutional Court and pointed out that the latter took three years to decide the case even though it had already been pending for more than four years when he lodged his constitutional complaint.

2. He further complained that he did not have an effective remedy within the meaning of Article 13 of the Convention to complain about the length of the proceedings.

3. Lastly, he complained under Article 1 of Protocol No. 1 about the calculation of his old-age pension claims.

THE LAW

1. The applicant complained that the length of the proceedings , in particular before the Federal Constitutional Court, had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads 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 applicant underlined that the proceedings were of fundamental importance to him as they concerned his pension claims. Moreover there were no complex issues at stake, which was reflected in the Federal Constitutional Court ’ s reasoning being very short and limited to admissibility issues.

The Government contested th ese argument s. They argued that the subject matter was of some complexity and referred to the special features of the procedure in the Federal Constitutional Court as well as to the Court ’ s case law in this respect ( Süßmann v. Germany , 16 September 1996, § 56 , Reports of Judgments and Decisions 1996 ‑ IV; and Gast and Popp v. Germany , no. 29357/95, § 75, ECHR 2000 ‑ II) . It necessarily had to place priority to cases which appear well-founded vis-à-vis those which – such as the constitutional complaint at hand – do not at first glance appear to be admissible for procedural reasons. Referring to the Courts judgment in the case of Kirsten v. Germany ( no. 19124/02, § 46, 15 February 2007), they claimed that it could not be the Federal Constitutional Court ’ s task to compensate the length of the prior instance court proceedings. Moreover, they pointed out that in the past few years, a number of efforts had been taken to shorten the length of the proceedings before that court. Lastly, they stressed that the case did not cause prejudice to the applicant to such an extent that it should have led the Federal Constitutional Court to deal with it as a matter of great urgency.

The Court notes at the outset that , in accordance with its established case-law, proceedings can come within the scope of Article 6 § 1 of the Convention even if they take place before a Constitutional Court where, as in the present case, their result is capable of affecting the outcome of the proceedings before the ordinary courts (see, among others, Voggenreiter v. Germany , no. 47169/99, §§ 31 - 32 , ECHR 2004 ‑ I (extracts) ). T he proceedings at issue , which are about the calculation of the applicant ’ s old ‑ age pension , concern the determination of the applicant ’ s “civil rights” within the meaning of Article 6 § 1, which is therefore applicable (see, among others, Süßmann , cited above, § 42).

The Court finds that the applicant must be consider ed as complaining exclusively about the proceedings before the Federal Constitutional Court . T h e period to be examined began on 4 October 2005, when the applicant lodged his constitutional complaint, and ended on 7 October 2008 , when the Federal Constitutional Court rejected the constitutional complaint . It thus lasted slightly more than three years .

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

In the present case, the Court finds that the length of the proceedings did not exceed the “reasonable time” requirement of Article 6 § 1 of the Convention. The Court is aware that the proceedings concerned the calculation of the applicant ’ s pension claims and therefore, also having regard to his age, were involving an issue of importance for him (see Süßmann , cited above, § 61; Petermann v. Germany ( dec .), no. 901/05 , 25 March 2010). However, the Court must also take into account that the applicant already received monthly pension benefits amounting to EUR 1,153.43 . Furthermore, the instance courts dealt with his case without undue delay , namely within less than four years for three instances. In the light , moreover, of the fact that i ts role as guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account other considerations than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see Süßmann , cited above, § 56; Gast and Popp , no. 29357/95, § 75; and, most recently, Stephan and Röhrig v. Germany ( dec .), no. 3237/06, 12 April 2011 ) , the Court finds that the length of the proceedings in the instant case cannot yet be considered as being excessive. The applicants ’ complaint therefore is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. The applicant further complained of the fact that in Germany there was no court to which application could be made to complain of the excessive length of proceedings. He relied on Article 13 of the Convention , which reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government did not contest that argument but submitted that the applicant was lacking an arguable claim and that , moreover , work on a new draft bill in this regard was underway .

The Court reiterates that Article 13 is applicable even in the absence of an infringement of the applicant ’ s Convention rights. However, it applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see, amongst others, Boyle and Rice v. the United Kingdom , 27 April 1988, § 52 , Series A no. 131 ) . The Court has found above that the applicants ’ complaint under Article 6 § 1 about the length of the proceedings is manifestly ill-founded. The applicant therefore did not have an “arguable claim” for the purposes of Article 13 (see, for example, Samadi v. Germany ( dec .), no. 22367/04 , 12 February 2008 ; and Ellersiek v. Germany ( dec .), no. 77151/01, 23 June 2005).

It follows that this complaint is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. The applicant lastly complain ed under Article 1 of Protocol No. 1 about the calculation of his old-age pension claims.

In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. If follows that it is also inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Mark Villiger Deputy Registrar President