European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74664/01
by Werner POKORNY
against Germany

The European Court of Human Rights (Fifth Section), sitting on 11 December 2007 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 22 June 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant Mr Werner Pokorny was a German national who was born in 1933 and lived in Berlin.

He was represented before the Court by Mr K. H. Christoph, a lawyer practising in Berlin.

A.  The circumstances of the case

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

The applicant was a citizen of the German Democratic Republic (“GDR”) and an engineer by profession. He subscribed to the additional pension scheme for members of the GDR’s Socialist Unity Party (Sozialistische Einheitspartei Deutschlands - SED) between 1965 and 1987. Subsequently, he adhered to an additional pension scheme open to chief executive officers until 1990 (see “Relevant domestic law”).

The applicant passed away on 15 July 2005. His widow wished to pursue his application.

1.  First set of proceedings

On 16 October 1995 the Federal Insurance Fund for Salaried Employees (Bundesversicherungsanstalt für Angestellte – hereinafter referred to as “Insurance Fund”) fixed the applicant’s invalidity pension for the period between 1 September and 30 November 1992.

On 8 November 1995 he lodged an objection arguing that his contributions to the additional pension scheme had not been taken into account. His objection was rejected on 11 March 1996.

On 28 March 1996 the applicant brought an action in the Berlin Social Court. On 24 June 1996 the court rejected his action as unfounded. The applicant then appealed against that judgment. While the appeal proceedings were pending the defendant issued two new decisions on 6 September 1996 and 6 July 2000 fixing the applicant’s invalidity pension; those decisions also became subject of the proceedings.

On 2 November 2001 the Social Court of Appeal rejected the applicant’s appeal and his actions against the two subsequent decisions as unfounded.
It found that the calculation was in accordance with domestic legislation and the decision of the Federal Constitutional Court of 28 April 1999 as implemented by the Federal Social Court of 3 August 1999 (see Klose and Others v. Germany (dec.), no. 12923/03, 25 September 2007).

The court refused the applicant leave to appeal on points of law.
On 11 June 2002 the Federal Social Court rejected the applicant’s complaint as inadmissible.

2.  The second set of the proceedings

(a)  The first part

On 8 November 1995 the applicant requested the successor party of the SED to review the periods of his contributions under the additional pension scheme of the SED. On 29 February 1996 the applicant’s request was rejected, as well as his objection on 21 June 1996.

He then brought an action in the Berlin Social Court on 7 July 1996.
On 22 June 2000 the court ordered the stay of the proceedings awaiting the decision of the Federal Constitutional Court in a pilot case. The proceedings were re-opened in 2002.

(b)  The second part

On 20 November 1995 the Insurance Fund established the periods of contributions to the additional pension system for Chief Executive Officers. On 15 January 1996 it rejected the applicant’s objection.
On 26 January 1996 the applicant brought an action in the Berlin Social Court. On 15 July 1999 the court ordered the stay of the proceedings.
In 2002 the court re-opened the proceedings.

On 10 January 2003 the proceedings under a) and b) were joined.
On 15 May 2003 the Social Court stayed the proceedings. They were re-opened in 2005. On 8 November 2005 the defendants acknowledged the applicant’s claim and the proceedings were thus terminated.

3.  The third set of proceedings

On 10 November 1998 and 3 February 1999 the Insurance Fund fixed the applicant’s old-age pension. At an unknown point of time he lodged an objection. Following the Insurance Fund’s inaction the applicant brought an action challenging the inactivity of the Insurance Fund. On 10 March 2000 the Insurance Fund then rendered a decision upon his objection.

On 22 March 2000 the applicant brought an action in the Social Court. On 4 July 2000 the Social Court suggested that the proceedings be stayed in view of a pilot procedure pending before the Federal Constitutional Court. Since the parties did not consent to the stay, the court ordered its stay
ex officio on 15 September 2000.

On 13 July 2005, following the Federal Constitutional Court’s decision of 23 June 2004, the court informed the applicant that it could not re-open the proceedings before the proceedings under 2a) and b) would be terminated.

On 15 July 2005 the applicant passed away and his widow further pursued the proceedings. On 23 January 2006 the court informed her that the defendant had acknowledged the claim and inquired whether she would accept this. The applicant’s widow, however, did not accept the acknowledgment and requested the continuance of the proceedings.
On 9 February 2006 the court rejected her request for a time-limit of two months to submit further observations as unacceptable and granted a time-limit of one month. It appears that the proceedings are still pending.

B.  Relevant domestic law

In the GDR there were a compulsory general pension scheme (Sozialpflichtversicherung), an optional supplementary pension scheme (Freiwillige Zusatzrentenversicherung) and furthermore additional pension schemes for certain professions or groups (Zusatz- und Sonderversorgungs-systeme), which led to a considerable increase of the amount of pension.
For a more detailed overview of the GDR pension system and its transfer to the Federal Republic of Germany (“FRG”) see the Court’s recent decision in the case of Klose and Others (cited above).

COMPLAINTS

Invoking Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 the applicant complained that he was entitled to a higher pension. Furthermore the applicant submitted under Article 7 that he was punished for his political views by a reduction of his pension rights.

Lastly, the applicant complained under Article 6 of the Convention about the length of the proceedings.

THE LAW

At the outset the Court finds that it is not necessary to examine whether the applicant’s widow may pursue his application in respect of those complaints since this part of the application is inadmissible in any event for the following reasons.

Insofar as the applicant invoked Article 7 of the Convention the Court considers that the facts of the case do not fall within the ambit of that provision and the applicant’s complaints are therefore incompatible ratione materiae with the provisions of the Convention and the Protocols thereto.

As regards the first set of proceedings the Court recalls that an applicant can only allege a violation of Article 1 if the impugned decisions related to his “possessions”, i. e. either existing possessions or a “legitimate expectation” in this respect. The Court recalls that a legitimate expectation must be based either on a legal provision or must have a solid basis in the domestic case law (see von Maltzan and Others v. Germany [GC], nos. 71916/01, 71917/01 and 10260/02 § 112, ECHR 2005-...). Furthermore, the Court reiterates that the transition from a communist regime to a democratic market-economy system in the new Länder created a considerable burden for the German legislator. Therefore the legislator enjoyed a wide margin of appreciation in this respect. Furthermore, it is not for the Court to examine in detail the extremely complex method of calculation applied to the transfer of pension rights from the GDR to the Federal Republic of Germany
(see Klose, cited above).

The subject of the first set of proceedings was solely the amount of invalidity pension for a period of three months. There is no indication that the Unification Treaty created rights going beyond the rights established by the legislator following German Unification. Having regard to the above considerations the Court concludes that the applicant could not claim to have a legitimate expectation of receiving a pension of a higher amount. Thus, the applicant’s complaints are incompatible ratione materiae with the provisions of the Convention and the Protocols thereto.

In respect of the second set of proceedings the Court observes that the proceedings were terminated by an acknowledgment of the defendant. Hence the applicant can no longer claim to be a victim within the meaning of Article 34 § 1 of the Convention. Thus, the applicant’s complaint is manifestly ill-founded.

The third set of proceedings is still pending and the Court therefore considers the applicant’s complaints to be premature.

It follows that this part of the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

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

The Court considers that the applicant’s widow may pursue her late husband’s application in respect of his complaints about the length of the proceedings (see among others, Vocaturo v. Italy, judgment of 24 May 1991, Series A no. 206, p. 29, § 2).

The Court finds that it cannot, on the basis of the case file, determine the admissibility of the complaint. It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the length of the proceedings;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President