CEDH · CASELAW;REPORTS;ENG — 12 avril 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          EUROPEAN COMMISSION OF HUMAN RIGHTS                            Application No. 20024/92                                Gerhard Süssmann                                     against                                     Germany                            REPORT OF THE COMMISSION                           (adopted on 12 April 1995)                                TABLE OF CONTENTS                                                                         Page   I.     INTRODUCTION       (paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1   II.    ESTABLISHMENT OF THE FACTS       (paras. 6-30) . . . . . . . . . . . . . . . . . . . . . . . . . . .3   III.   OPINION OF THE COMMISSION       (paras. 31-61). . . . . . . . . . . . . . . . . . . . . . . . . . .7         A.     Complaint declared admissible             (para. 31). . . . . . . . . . . . . . . . . . . . . . . . . .7         B.     Point at issue             (para. 32). . . . . . . . . . . . . . . . . . . . . . . . . .7         C.     Article 6 para. 1 of the Convention             (paras. 33-60). . . . . . . . . . . . . . . . . . . . . . . .7               CONCLUSION             (para. 61). . . . . . . . . . . . . . . . . . . . . . . . . 12   APPENDIX I:   PARTIAL DECISION OF THE COMMISSION AS TO THE             ADMISSIBILITY OF THE APPLICATION. . . . . . . . . . . . . . 13   APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE              ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . . 19   I.     INTRODUCTION   1.     The present Report concerns Application No. 20024/92 introduced on 21 May 1992 against the Federal Republic of Germany and registered on 22 May 1992.         The applicant is a German national born in 1916 and resident in Karlsruhe.         The respondent Government are represented by Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of Justice.   2.     The complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was communicated to the Government for observations on 8 September 1993.   The remainder of the application was declared inadmissible.   Following an exchange of written observations, the complaint relating to the length of proceedings was declared admissible on 30 August 1994.   The decisions on admissibility are appended to this Report.   3.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission, after deliberating, adopted this Report on 12 April 1995, in accordance with Article 31 para. 1 of the Convention, the following members being present:               MM.    C. A. NØRGAARD, President                   C.L. ROZAKIS                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   S. TRECHSEL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS             Mrs.   G.H. THUNE             Mr.    F. MARTINEZ             Mrs.   J. LIDDY             MM.    L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                   M.A. NOWICKI                   B. CONFORTI                   I. BÉKÉS                   J. MUCHA                   E. KONSTANTINOV                   D. SVÁBY                   G. RESS   4.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Germany.   5.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   6.     The applicant, who was employed in the German civil service, receives a supplementary pension (Versorgungsrente).   Employees in the German civil service have a supplementary old age insurance, administered by the Supplementary Pensions Office (Versorgungsanstalt des Bundes und der Länder), which entitles to a progressive supplementary pension.   7.     In March 1982 and again in March 1984 the statutes of this pension scheme were amended in order to avoid that the amounts paid under the general old age pension scheme, plus the amounts paid under the supplementary pension scheme for the civil service, exceeded the last net salaries of the employees in the civil service.   These amendments also affected cases where insurance contracts already existed or pensions were paid.   On 16 March 1988, the Federal Court of Justice (Bundesgerichtshof), in leading cases, confirmed the lawfulness of the amendment.   8.     On 16 May and 3 June 1988 the Supplementary Pensions Office fixed the amount of the applicant's supplementary pension in accordance with the amended statutes.   9.     The applicant appealed to the Arbitration Tribunal (Schieds-gericht) at the Supplementary Pensions Office.   Arbitration was provided for under the statutes of the Supplementary Pensions Office. 10.    On 20 February 1987 the Arbitration Tribunal dismissed his appeal. On 10 March 1989 the High Arbitration Court (Oberschieds-gericht) dismissed his further appeal.   11.    On 11 July 1988 the applicant filed a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht) concerning the amendments to the statutes of the Supplementary Pensions Scheme of 1982 and 1984.   Subsequently, he made further submissions. On 4 April 1989 he extended his complaints to the decision of the High Arbitration Court of 10 March 1989.   12.    The applicant's case was assigned to the Second Chamber of the First Senate at the Federal Constitutional Court.   At that time and in the following two years other complaints on this matter were lodged; 24 cases raised almost the same issues.   The Second Chamber also conducted proceedings in cases concerning, inter alia, the periods of notice regarding the dismissal of workers (decided on 30 May 1990), the right of an employer to lock out workers in the course of strikes (decided on 26 June 1991), and the constitutional complaints of former civil servants of the German Democratic Republic regarding a provision of the Unification Treaty terminating their contracts of employment (decided on 24 April 1991).   13.    On 6 November 1991 the Second Chamber, composed of three judges, of the First Senate at the Federal Constitutional Court refused to admit the applicant's constitutional complaint on the ground that it did not offer sufficient prospect of success.   14.    The Constitutional Court found that his complaint was inadmissible to the extent that factual or legal issues could have been raised in proceedings before the competent lower courts.   However, the remainder of his complaints, in particular about unfairness of the proceedings before the Federal Court of Justice and about violation of his right to property, were admissible.   The judgments of the Federal Court of Justice of 16 March 1988 had finally determined the factual and legal position, and no further appeals were necessary in order to exhaust ordinary remedies.   15.    As regards the applicant's complaint about unfairness, the Constitutional Court found no indication that the courts had failed duly to consider factual submissions as to the amendment of the statutes concerned. The judgments were mainly based upon two opinions by expert commissions of September 1975 and November 1983.   No further evidence had to be taken.   16.    The Constitutional Court further stated that, assuming the pension rights concerned fell within the scope of the constitutional right to property, there was no indication of a violation of this right.   The pension rights could be reduced by amending the statute under the rules of private law.   17.    The Constitutional Court noted that the Federal Court of Justice had found the pensions under the scheme managed by the Supplementary Pensions Office to be governed by private law.   This appreciation had not generally been disputed by the applicant.   The Constitutional Court further noted that the Federal Court of Justice regarded the pension insurance as insurance for a group of persons (Gruppenversicherung), the employer being the insured and the employees the beneficiaries.   The Federal Court of Justice, examining the compliance of the amendment with the employees' interests, had considered that the amendments had, in reaction to a socially intolerable development, remedied a serious interference with the purpose of the supplementary pension.   It served the consolidation of all old age pension schemes and was based upon a decision of principle taken by employers and employed.   The wide margin of appreciation in this context had not been overstepped.   18.    The Constitutional Court held that these findings of the Federal Court of Justice did not disclose any violation of constitutional rights.   In particular the interests of the individual employees as beneficiaries could reasonably be protected by the professional organisations representing them. Having regard to the general interest in a solid system of old age pensions which could be financed, a collective safeguard of the employees' interests appeared appropriate.   The deviation from previous case-law of the Federal Court of Justice regarding the employee as an insured person under the statutes in question did not amount to a violation of property rights as the case-law did not have any binding effect.   19.    The Constitutional Court also found that the applicant's doubts as to the impartiality of the judges at the arbitration courts were irrelevant, as they were not part of the judiciary, but arbitration boards under private law.   20.    The decision was served on 5 December 1991.   B.     The relevant domestic law   21.    According to Article 93 para. 1 (4a) of the German Basic Law (Grundgesetz), the Federal Constitutional Court (Bundes-verfassungsgericht) shall decide, inter alia, on constitutional complaints (Verfassungsbeschwerden), which may be lodged by any person claiming to be the victim of a violation by a public authority of one of the basic rights (Grundrechte) or of one of the rights under Article 20 para. 4, Articles 33, 38, 101, 103, 104 of the Basic Law.   22.    The constitution and procedure of the Federal Constitutional Court is regulated by the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht).   23.    SS. 90 to 96 of the Federal Constitutional Court Act concern the above-mentioned constitutional complaint proceedings.   At the relevant time, the Constitutional Court Act 1985 was in force; the rules as set out in the following paragraphs refer to this version of the law.   24.    S. 90 para. 1 defines the persons entitled to lodge a constitutional complaint.   Paragraph 2 requires complainants to exhaust, in general, the available ordinary remedies; the Constitutional Court may, in exceptional circumstances, decide upon a constitutional complaint before such remedies have been exhausted.   25.    A constitutional complaint has to be lodged in writing, indicating the right allegedly violated and the responsible public authority (S. 92).   The constitutional complaint has to be lodged within one month from the service of, or information about, the decision concerned; in case of a constitutional complaint about a law or about another act of a public authority against which there is no recourse to a court, the constitutional complaint has to be lodged within one year from the entry into force of that law or act (S. 93).   26.    According to S. 93a, the constitutional complaint needs to be admitted for examination.   S. 93b para. 1 provides that the Chamber, composed of three judges, can unanimously refuse to admit a constitutional complaint, if the complainant failed to pay the advance court fee, if the complaint is inadmissible or does not, for other reasons, offer sufficient prospect of success, or if the Senate will probably not admit the complaint under S. 93c, second sentence.   There is no appeal against the decision.   The Chamber can, unanimously, decide upon complaints which are manifestly well- founded because the relevant legal questions have already been decided by the Federal Constitutional Court (S. 93c para. 2).   The Chamber decides in written proceedings; and the reasoning of a decision not to admit a constitutional complaint may be limited to referring to the legal aspect decisive for not admitting it.   27.    Where the Chamber has not decided upon the question of either admitting or refusing to admit a constitutional complaint, the Senate decides and admits the complaint if at least two judges consider that the decision is likely to clarify a question of constitutional law, or if otherwise the complainant would suffer a grave and irreparable prejudice (S. 93c).   28.    S. 94 regulates the rights of third parties to be heard in the constitutional complaint proceedings.   29.    S. 95 provides in particular that, in case the constitutional complaint is successful, the reasoning of the decision has to contain a reference to the provision of the Basic Law which was violated and to the public act which constituted the said violation.   Unconstitutional decisions are quashed by the Federal Constitutional Court, and a law will be declared void.   30.    The Federal Constitutional Court Act was subsequently amended in order to discharge the Federal Constitutional Court; the amendment of 1993 (entry into force on 11 August 1993) restructured in particular the proceedings regarding constitutional complaints (S. 93a to S. 93d of the Constitutional Court Act 1993).   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   31.    The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time by the Federal Constitutional Court.   B.     Point at issue   32.    The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Article 6 para. 1 (Art. 6-1) of the Convention   33.    The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention provides as follows :         "In the determination of his civil rights and obligations ...,       everyone is entitled to a ... hearing within a reasonable time by (a)       ... tribunal ..."   34.    The applicant, a retired employee from the German civil service, complains about the length of proceedings before the Federal Constitutional Court. These proceedings related to his constitutional complaint about the reduction of his supplementary pension following amendments to a pension scheme for employees in the civil service.   The Second Chamber of the First Senate at the Federal Constitutional Court refused to admit this complaint on the ground that it did not offer sufficient prospect of success.   a.     Applicability of Article 6 para. 1 (Art. 6-1)   35.    According to the applicant, the length of his constitutional complaint proceedings before the Federal Constitutional Court falls to be examined under Article 6 para. 1 (Art. 6-1).   36.    The Government submit that Article 6 para. 1 (Art. 6-1) does not apply to the constitutional complaint proceedings before the Federal Constitutional Court.   37.    They consider that the criterion applied in the case-law of the European Court of Human Rights, namely whether or not the Constitutional Court's decision was capable of affecting the outcome of the case which has been litigated before the ordinary courts, is inappropriate, as there was no conceivable case in which the Constitutional Court's decision had no effect on the proceedings before the ordinary courts.   The Constitutional Court's proceedings would thus always be covered by Article 6 para. 1 (Art. 6-1).   38.    The Government are of the opinion that proceedings before the Federal Constitutional Court, taking into account its particular position and tasks under the German Basic Law, cannot be regarded as relating to a dispute over "civil rights and obligations".   Rather the Constitutional Court decided on the constitutional aspects of a case and not on the merits of the dispute between the parties.   39.    The Government submit in particular that the obligation to decide within a reasonable time could not be applied to the constitutional complaint proceedings.   Though normally such complaints, if they were inadmissible or did not offer sufficient prospect of success, were dealt with within some weeks or months, they could be delayed because of the workload of the Federal Constitutional Court, because of the joinder of similar cases or the priority to be given to more important cases.   The Government also point at the far-reaching consequences for the functioning and the structure of the Federal Constitutional Court, should Article 6 (Art. 6) be regarded as applicable.   40.    The Commission recalls that Article 6 para. 1 (Art. 6-1) applies to "all proceedings the result of which is decisive for private rights and obligations" and that "the character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc.) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc.) are therefore of little consequence" (Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 94; as recent authority Stran Greek Refineries and Stratis Andreadis judgment of 9 December 1994, para. 39, to be published in Series A no. 301-B).   41.    The applicant's complaint under Article 6 para. 1 (Art. 6-1) concerns solely the length of his constitutional complaint proceedings before the Federal Constitutional Court.   The applicant, without having brought his case before the civil courts, was in a position directly to lodge his constitutional complaint after decisions by arbitration tribunals. Moreover, in a leading case, the Federal Court of Justice had confirmed the statutory amendments resulting in a reduction of the civil servants' pension rights under the Supplementary Pension Scheme.   The applicant's proceedings before the Federal Constitutional Court have to be seen against this background of disputes concerning the entitlement to a particular amount of pension, i.e. pecuniary claims, and are as such of a civil nature (cf. Eur. Court H.R., Francesco Lombardo judgment of 26 November 1992, Series A no. 249-B, pp. 26-27, para. 17; Giancarlo Lombardo judgment of 26   November 1992, Series A no. 249-C, p. 42, para. 16).   42.    For the purpose of calculating the relevant period when the reasonable length of civil proceedings is at issue, proceedings in a Constitutional Court have been taken into account where the result of such proceedings is capable of affecting the outcome of the proceedings before the ordinary courts (Eur. Court H.R., Ruiz-Mateos judgment of 23 June 1993, Series A no. 262, pp. 19-20, para. 35-37, with further references, as well as the Court's statement, at p. 19, para. 35, abandoning the approach taken in the Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para. 48).   43.    The Commission finds that these considerations also apply in the present case, where the constitutional proceedings were initiated by the applicant following an arbitration in his own case and decisions of the Federal Court of Justice in leading cases.   Invoking inter alia his constitutional right of property, the applicant complained before the Federal Constitutional Court in particular about   unconstitutionality of the statutory amendments to the Supplementary Pension Scheme, and of the decisions based thereupon.   The Commission observes that, in case of success of a constitutional complaint, the Federal Constitutional Court, in accordance with S. 95 of the Federal Constitutional Court Act, does not only state the violation of the Basic Law and indicate the responsible public authority, but also has the power to quash the decision, or declare void the law, complained of.   44.    The Commission has next considered that the proceedings at issue solely related to the preliminary examination, under the relevant provisions of the Federal Constitutional Court Act 1985 (in force in the period concerned), of whether the applicant's constitutional complaint fulfilled the conditions to be admitted for a further examination (see above, paragraphs 26 and 27).   According to S. 93b of the Constitutional Court Act 1985, the Chamber had to decide at this stage whether any request for payment of an advance court fee had been complied with, whether the complaint was inadmissible or did not, for other reasons, offer sufficient prospect of success, and finally whether or not the decision was likely to clarify a question of constitutional law, or whether the complainant would suffer a grave and irreparable prejudice in case his complaint was not admitted.   The above provision also entitled the Chamber to decide itself that the complaints were well-founded in the light of the existing case-law.     45.    In this context the Commission recalls that the Convention does not compel the Contracting States to set up courts of appeal or of cassation (cf. Eur. Court H.R., Delcourt judgment of 17 February 1970, Series A no. 11, p. 15, para. 25; Monnell and Morris judgment of 2 March 1987, Series A no. 115, p. 21, para. 54), or grant persons under their jurisdiction a constitutional appeal in addition to the appeals available before the ordinary courts (No. 6916/75, Dec. 12.3.76, D.R. 6 p. 101).   A State which institutes such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (Art. 6) (Eur. Court H.R., Delcourt judgment, loc. cit.; Monnell and Morris judgment, loc. cit.).   However, the State concerned is entitled to lay down the provisions by which the appeal shall be governed and fix the conditions under which it may be brought (No. 6916/75, Dec. 12.3.76, loc. cit.; No. 11826/85, Dec. 9.5.89, D.R. 61 p. 138).   46.    The Commission observes that Article 6 (Art. 6) has been applied to leave-to-appeal proceedings in criminal cases where the issue to be decided was whether the applicant had demonstrated the existence of arguable grounds which would justify hearing an appeal.   If, in these cases, the grounds pleaded were in law legitimate grounds for an appeal and if they merited further argument or consideration, leave was given; if one or other of these conditions were lacking, leave was refused (cf. Eur. Court H.R., Monnell and Morris judgment, loc. cit., pp. 21-22, paras. 54-57).   47.    As regards disputes concerning civil rights and obligations, Article 6 (Art. 6) was considered not to apply to proceedings before a Supreme Court or a Constitutional Court, which determines, in a preliminary examination and without entering on the merits of the case, whether or not the conditions for granting leave to appeal have been fulfilled (No. 6916/75, Dec. 12.3.76, loc. cit.; No. 11826/85, Dec. 9.5.89, loc. cit. with further reference).   In this respect, the Commission also recalls that Article 6 (Art. 6) is generally not applicable where a procedural obstacle did not allow an examination on the merits (cf. No. 10865/84, Dec. 12.5.86, D.R. 47 p. 188, with further references).   48.    In the present case, the applicant's constitutional complaint was, in substantial parts, not regarded as inadmissible due to a procedural mistake.   49.    The decision of the Second Chamber regarding the applicant's constitutional complaint was based on the consideration that it did not offer sufficient prospect of success, which constitutes an element of admissibility under the relevant provisions of the Federal Constitutional Court Act.   In reaching this conclusion the Second Chamber extended its preliminary examination of the case to the merits of the applicant's submissions and arguments.   Indeed, the Chamber addressed in detail various substantial issues raised by the applicant, inter alia, whether or not the Federal Court of Justice, in confirming the lawfulness of the changes in the supplementary pensions statutes, had disregarded the constitutional right to property.     50.    In these circumstances, the proceedings in question fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   b.     Compliance with Article 6 para. 1 (Art. 6-1)   51.    The Commission considers that the relevant period to be considered under Article 6 para. 1 (Art. 6-1) started on 11 July 1988, when the Constitutional Court received the applicant's constitutional complaint.   The proceedings terminated on 5 December 1991, when the Constitutional Court's decision was served on the applicant.   The proceedings thus lasted three years, four months and three weeks.   52.    The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case (see Eur. Court H.R., Vernillo judgment of 20 February 1991, Series A no. 198, p. 12, para. 30).   On the latter point, the importance of what is at stake for the applicant in the litigation has to be taken into account (cf. Eur. Court H.R., Allenet de Ribemont judgment of 10 February 1995, paras. 47, 57, to be published in Series A no. 308).   53.    According to the Government, the length of the period in question is due to the workload of the Second Chamber of the Constitutional Court in general, and the lodging, over a period of two years following the applicant's complaint, of altogether 24 complaints raising almost the same pension issues.   54.    The Commission finds that the present case was not as such particularly complex.   In this respect, the Commission observes in particular that the Second Chamber of the Constitutional Court decided not to admit the applicant's constitutional complaint for a further examination on the ground that it did not offer sufficient prospects of success.   While the reasoning of this decision was rather detailed, the summary nature of this procedure, which did not involve steps liable to lead to prolongations, remains decisive.   55.    The applicant did not cause any delays in the proceedings.   56.    As regards the conduct of the Federal Constitutional Court, the Government state that, at the relevant time, the Second Chamber of the Constitutional Court had a particularly heavy work-load.   In July 1988 when the applicant filed his constitutional complaint and in the following two years, several other constitutional complaints on these matters were lodged.   The major part of these altogether 24 cases were determined in November 1991, including the applicant's complaint.   At the same time, the Second Chamber had to conduct proceedings in more urgent cases concerning inter alia the periods of notice regarding the dismissal of workers (decided on 30 May 1990), the right of an employer to lock out workers in the course of strikes (decided on 26 June 1991), and the constitutional complaints of former civil servants of the German Democratic Republic regarding a provision of the Unification Treaty terminating their contracts of employment (decided on 24 April 1991).   57.    The Commission recalls that Article 6 para. 1 (Art. 6-1) imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements (Eur. Court H.R., Vocaturo judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17; Pizzetti judgment of 26 February 1993, Series A no. 257-C, p. 37, para. 18). In this context weight must be attached not only to the special features of constitutional proceedings, but also to the nature and general importance of the matters raised in the cases before the Constitutional Court (cf. Eur. Court H.R., Ruiz-Mateos judgment, loc. cit., p. 23, paras. 51-52).   58.    The Government point at the greater importance of other cases before the Second Chamber.   The Commission observes, however, that the questions raised in the applicant's constitutional complaint were not limited to his individual situation, but related to the lawfulness of statutory amendments to a Supplementary Pension Scheme which resulted in a reduction of supplementary pension rights for a large number of employees in the German civil service.   59.    It was in the first place for the Federal Constitutional Court to adapt its procedure to the increasing number of such complaints, and to ensure completion of the other proceedings pending before it, in particular of the cases assigned to the Second Chamber.   60.    The Commission, examining the length of the proceedings in the present case in the light of Article 6 para. 1 (Art. 6-1) of the Convention, considers that Constitutional Court proceedings lasting almost three years and five months and terminating with a decision not to admit the applicant's complaint for insufficient prospect of success were too long.   In this respect, the Commission took into account that, given the applicant's age, what was at stake for him in the proceedings before the Federal Constitutional Court was of pressing importance.   Consequently, the Commission finds that the proceedings exceeded a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         CONCLUSION   61.    The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Commission          President of the Commission         (H.C. KRÜGER)                            (C. A. NØRGAARD)