CEDH · CASELAW;REPORTS;ENG — 27 février 1996

.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. 16717/90                                 Dietmar Pauger                                     against                                     Austria                              REPORT OF THE COMMISSION                        (adopted on 27 February 1996)                                  TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2     II.    ESTABLISHMENT OF THE FACTS       (paras. 17-40). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 17-30) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 31-40) . . . . . . . . . . . . . . . . . . . . . 4     III.   OPINION OF THE COMMISSION       (paras. 41-57). . . . . . . . . . . . . . . . . . . . . . . . 8         A.    Complaint declared admissible            (para. 41) . . . . . . . . . . . . . . . . . . . . . . . 8         B.    Point at issue            (para. 42) . . . . . . . . . . . . . . . . . . . . . . . 8         C.    Article 6 para. 1 of the Convention            (paras. 43-56) . . . . . . . . . . . . . . . . . . . . . 8              a. Applicability of Article 6 para. 1 of the Convention            (paras. 44-49) . . . . . . . . . . . . . . . . . . . . . 8              b. Compliance with Article 6 para. 1 of the Convention            (paras. 50-56) . . . . . . . . . . . . . . . . . . . . . 9                                TABLE OF CONTENTS                                                                    Page              CONCLUSION            (para. 57) . . . . . . . . . . . . . . . . . . . . . . .11     CONCURRING OPINION OF MM. G. JÖRUNDSSON, H.G. SCHERMERS, M. PELLONPÄÄ, B. MARXER . . . . . . . . . . . . . . . . . . . . . .12     DISSENTING OPINION OF MM. C.L. ROZAKIS, E. BUSUTTIL, A. WEITZEL, J.-C. SOYER, MRS. G.H. THUNE, MRS. J. LIDDY, MM. L. LOUCAIDES, M.A. NOWICIK, N. BRATZA . . . . . . . . . . . . .14     PARTIALLY CONCURRING AND PARTIALLY DISSENTING OPINION OF MR. TRECHSEL JOINED BY MR. A.S. GÖZÜBÜYÜK. . . . . . . .16     APPENDIX :        DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . . . . . . . .16     I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.     The application   2.     The applicant, an Austrian citizen born in 1941, is a university professor residing in Graz.   3.     The application is directed against the Republic of Austria whose Government were represented by their agent, Ambassador F. Cede, Head of the International Law Department of the Federal Ministry for Foreign Affairs.   4.     The case concerns proceedings for the granting of a widower's pension to the applicant.   He complains that he did not have a hearing in the proceedings before the Constitutional Court and invokes Article 6 para. 1 of the Convention in this respect.     B.     The proceedings   5.     The application was introduced on 14 February 1990 and registered on 13 June 1990.   6.     On 11 October 1993 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.     The Government's observations were submitted on 28 January 1994 after one extension of the time-limit fixed for this purpose.   The applicant replied on 21 March 1994.   On 28 March 1994 the applicant supplemented those observations.   8.     On 9 January 1995 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention regarding the lack of a hearing before the Constitutional Court.   It declared inadmissible the remainder of the application.   10.    The text of the Commission's decision on admissibility was sent to the parties on 18 January 1995 and they were invited to submit such further information or observations on the merits as they wished.   No observations were submitted.   11.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.     The present Report   12.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  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                  I. CABRAL BARRETO                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL   13.    The text of this Report was adopted on 27 February 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   15.    The Commission's decision on the admissibility of the application is annexed hereto.   16.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   17.    On 23 June 1984 the applicant's wife died.   She had been employed as a school teacher in the civil service of the Region of Styria.   18.    On 24 August 1984 the applicant applied to the Regional Education Council (Landesschulrat) for a widower's pension.   On 30 August 1984 the Education Council dismissed the application on the ground that the relevant legislation, Section 14 para. 1 of the Pensions Act (Pensionsgesetz), only provided for a widow's pension, not a widower's pension.   19.    On 21 September 1984 the Regional Government (Landesregierung) dismissed the applicant's appeal against the Regional Education Council's decision. On 15 October 1984 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) and on 22 October 1984 with the Administrative Court (Verwaltungsgerichtshof).   20.    Meanwhile, on 4 October 1984, the Constitutional Court had repealed Section 14 para. 1 of the Pensions Act with effect from 28 February 1985.   The Court held that the discrimination against widowers in the Pensions Act violated the constitutional principle of equality (Gleichheitsgebot).   21.    On 13 February 1985 the Administrative Court dismissed the applicant's complaint.   It held that, even after the Constitutional Court had repealed Section 14 para. 1 of the Pensions Act, there was no legal basis for the applicant's claim to a widower's pension. On 23 February 1985 the Constitutional Court refused to deal with the applicant's complaint.   The Court found that it had already repealed Section 14 para. 1 of the Pensions Act and could not decide on the same issue again.   22.    On 26 September 1985 Parliament enacted the 8th Amendment to the Pensions Act (8. Pensionsgesetznovelle) with retroactive effect from 1 March 1985 onwards.   Section 14 para. 1 now provided that the surviving spouse of a civil servant was entitled to a pension. According to the transitional provisions of Part 2 para. 2 of the Act, a widower was entitled to one third of the full pension from 1 March 1985, to two thirds from 1 January 1989 and to the full pension from 1 January 1995.   Section 40a of the Pensions Act, which for the first time had been introduced in 1984 (Federal Gazette No. 406/1984), providing that the pension of a retired civil servant or of the surviving spouse was suspended if the person entitled was still gainfully employed, was formulated in a gender neutral manner.   23.    On 13 May 1985 the applicant applied again for a widower's pension.   On 18 November 1985 the Regional Education Council granted him a pension of AS 2.441,70, which corresponded to one third of the applicant's full pension rights.   24.    On 28 November 1985 the applicant appealed to the Regional Government.   He submitted that the Education Council had failed to decide whether his pension was suspended according to Section 40a of the Pensions Act, and that the decision was based on an unconstitutional Act. On 7 January 1986 the Regional Government partly upheld the applicant's appeal and suspended his pension.   25.    On 22 February 1986 the applicant lodged a complaint with the Constitutional Court.   He submitted that the transitional provisions of the amendment to the Pensions Act, which only entitled him to a reduced pension until 1 January 1995, and Section 40a of the Pensions Act, providing for suspension of pension rights, were unconstitutional.   26.    On 1 July 1987 the Constitutional Court instituted proceedings for the examination of the constitutionality of Section 40a of the Pensions Act, as set out in the 8th Amendment to the Pensions Act.   On 9 December 1987 the Court held a hearing in which the applicant participated.   On 16 March 1988 the Court repealed Section 40a of the Pensions Act with effect from 30 June 1988.   The Court held that the provisions of the Pensions Act violated the principle of equality, since no convincing reasons were given for the difference in treatment between a retired civil servant, or the surviving spouse of a civil servant with additional sources of income on the one hand, and an active civil servant in the same situation on the other.   On 17 March 1988 the Constitutional Court also quashed the Regional Government's decision of 7 January 1986.   27.    Thereupon on 21 June 1988 the Regional Government decided again on the applicant's appeal of 28 November 1985.   Although it dismissed the applicant's appeal, it thereby, in the reasoning of its decision, confirmed the Regional Education Council's decision of 18 November 1985 in which the applicant had been granted a pension in the amount of one third of his full pension rights.   28.    On 11 August 1988 the applicant introduced a new complaint with the Constitutional Court.   Again he submitted that the transitional provisions of the amendment to the Pensions Act, which reduced his pension rights until 1 January 1995, were unconstitutional.   He did not request the Constitutional Court to hold an oral hearing.   29.    On 3 October 1989 the Constitutional Court dismissed the applicant's complaint without an oral hearing, relying on Section 19 para. 4 first sentence of the Constitutional Court Act.   It held that the transitional arrangements reflected a continuing change in society regarding equality of the sexes and, thus, were not contrary to the principles of equality.   30.    On 5 June 1990 the applicant introduced a communication to the Human Rights Committee concerning the same facts as his application to the Commission.   He invoked a violation of Article 26 of the International Covenant on Civil and Political Rights, according to which "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law".   On 30 March 1992 the Human Rights Committee found a violation of Article 26 of the International Covenant on Civil and Political Rights.     B.     Relevant domestic law         a.    The Pensions Act   31.    The pension scheme for civil servants is regulated by the Pensions Act 1965 (Pensionsgesetz 1965).   32.    According to Section 2 para. 1 of the Pensions Act, a civil servant acquires a right to a pension for himself and the members of his family, that is his spouse, his former spouse and his children, from the day on which he takes up his functions. Upon retirement the civil servant is entitled to a pension.   If he dies, his spouse, former spouse and children are also entitled to a pension (Sections 14, 17 and 19 Pensions Act).   The pension is paid by the same authority which was paying the civil servant's salary.   33.    According to Section 22 of the Salary Act (Gehaltsgesetz), a civil servant has to pay contributions to the pension scheme amounting to 10% of his salary.   This amount is automatically deducted from the salary. The pension is calculated on the basis of the civil servant's last salary and his years of service (Section 4 Pensions Act).   34.    Section 14 para. 1 of the Pensions Act, as amended by the 8th Amendment to the Pensions Act, Federal Law Gazette 426/1985 (8. Pensionsgesetznovelle, BGBl. 426/1985), reads as follows:         "The surviving spouse of a civil servant is entitled to a monthly       pension if the civil servant himself had such a claim on the day       of his death, or if he would have had such a claim upon       retirement on that day."   35.    Part II para. 2 of the 8th Amendment to the Pensions Act reads as follows:         "The monthly instalments to which the widower or the former       husband are entitled, are         - from 1 March 1985 onwards the amount of one third;         - from 1 January 1989 onwards the amount of two thirds;         - and from 1 January 1995 onwards the full amount.         If the widower or former husband is incapable of gainful       employment and indigent, this restriction does not apply."         b.    Proceedings before the Austrian Constitutional Court   36.    According to Article 144 of the Austrian Federal Constitution, the Constitutional Court decides on complaints against formal decisions (Bescheide) of administrative authorities, including the independent Administrative Tribunals (Unabhängige Verwaltungssenate), insofar as an applicant alleges a violation of his constitutionally guaranteed rights or a violation of his rights by virtue of the application of an illegal ordinance, an unconstitutional law, or an unlawful international treaty.   37.    Complaints under Article 144 of the Federal Constitution can only be lodged after exhaustion of ordinary remedies and within six weeks after the decision taken at last instance has been served on the applicant (Section 82 para. 1 Constitutional Court Act 1953).   The complaint is then transmitted by the Court to the authority which took the challenged decision.   The authority then has the right to submit observations on the complaint within a time-limit set by the Court (Section 83 para. 1 Constitutional Court Act).   38.    After the authority's observations have been received by the Court or the time-limit has expired, the President of the Court orders a hearing if the complaint cannot be determined in a court session in camera.   Hearings in which the applicant, the authority and others affected by the decision (Beteiligte) participate are public (Section 84 para. 1 and Section 19 Constitutional Court Act).   39.    The grounds for deciding without a hearing are set out in Section 19 paras. 3 and 4 of the Constitutional Court Act as amended by the Federal Law of 1984, Federal Law Gazette No. 297, as follows:         "(3) Without further proceedings and without a hearing the       Constitutional Court can decide, upon proposal by the Rapporteur,       in a court session held in camera:              1.     To refuse to entertain a complaint according to            Article 144 para. 2 of the Federal Constitution.              2.     To reject an application for:                    a. manifest lack of jurisdiction of the Constitutional                  Court,                    b. failure to observe a statutory time-limit,                    c. failure to remedy the non-observance of a formal                  requirement,                    d. res judicata,                    e. lack of standing.              3.     To discontinue proceedings because an application has            been withdrawn or the case has been resolved.         (4)   The Constitutional Court may decide not to hold a hearing       when it is apparent to the Court, from the written pleadings of       the parties to the proceedings before the Constitutional Court       and from the files relating to the prior proceedings, that a       hearing is not likely to contribute to the clarification of the       case.   Upon a proposal by the Rapporteur, it may also decide       without a hearing:              1. to dismiss a complaint if a constitutionally guaranteed            right has manifestly not been violated;              2. cases where the question of law has been clarified            sufficiently by the prior case-law of the Constitutional            Court;              3. to allow a complaint which has provided the occasion to            repeal an unlawful Ordinance, an unconstitutional Act or an            unconstitutional International Treaty."   40.    According to Article 140 para. 7 of the Federal Constitution, a law shall continue to apply to the circumstances that have occurred before the date of the Constitutional Court's decision ordering it to be repealed, the case in point excepted, unless the Constitutional Court in its decision decides otherwise.   If the Constitutional Court in its repeal decision has set a time-limit, the law shall apply to all the circumstances occurring, the case in point excepted, until the expiry of this time-limit.   According to Article 140 para. 5 of the Federal Constitution, the Constitutional Court may set a time-limit for the repeal of up to one year.     III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   41.    The Commission has declared admissible the applicant's complaint about the lack of a hearing before the Constitutional Court on his complaint of 11 August 1988.     B.     Point at issue   42.    Accordingly the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     C.     Article 6 para. 1 (Art. 6-1) of the Convention   43.    Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, reads as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing       within a reasonable time   by an independent and impartial       tribunal established by law."   a.     Applicability of Article 6 para. 1 (Art. 6-1) of the Convention   44.    The applicant submits that his claim to a widower's pension constituted a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Neither peculiarities of public law relating to civil servants nor provisions in the budget for grants towards civil servants' pensions, could lead to a different conclusion. Furthermore, his complaint to the Constitutional Court of 11 August 1988 was directly linked to the proceedings concerning the determination of this civil right.   If the Constitutional Court would have repealed the transitional provisions he would have been entitled to a widower's pension in the full amount from the outset.   45.    The Government submit that the claim to a widower of a deceased civil servant to a widower's pension could not be regarded as a civil right within the meaning of Article 6 para. 1 (Art. 6-1) since it was by its nature a claim under public law and could not be compared to private pension schemes.   Contributions paid by civil servants to the pension scheme only covered a small part of the pension payments made by the State, so that the most significant portion is paid out of the general budget of the Federal and Regional Governments.   Moreover, according to the legislation in force the applicant had no right to a widower's pension in the full amount as by the transitional provisions his pension claim was clearly reduced.   In his complaint to the Constitutional Court of 11 August 1988 he had requested that the Regional Government's decision of 21 June 1988 be quashed on the ground that an unconstitutional provision had been applied.   In these proceedings the applicant had not relied on any right emanating from specific domestic statutes.   He only wanted to bring about a new legal situation and derive a previously non-existent right therefrom.   46.    The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention only applies to disputes over "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law.   Article 6 (Art. 6) does not in itself guarantee any particular content for "rights and obligations" in the substantive law of the Contracting States (cf. Eur. Court H.R., James and others judgment of 21 February 1986, Series A no. 98, p. 46, para. 81, and Lithgow and others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).   The dispute which gives a right to a determination by a court must be "genuine and of a serious nature" (see Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 14, para. 32).   47.    The Commission recalls that Article 6 para. 1 (Art. 6-1) of the Convention has already been applied to proceedings concerning pension rights of civil servants, including rights to a widower's pension (Eur. Court H.R., F. Lombardo judgment of 26 November 1992, Series A no. 249-B, pp. 26-27, paras. 14 et seq.; G. Lombardo judgment of 26 November 1992, Series A no. 249-C, p. 42, paras. 13 et seq.; Massa judgment of 24 August 1993, Series A no. 265-B, p. 20, para. 26).   The mere fact that, as in the present case, the claim to a widower's pension was governed by public law and that the State makes financial contributions to the making of pension payments cannot lead to a different conclusion.   48.    Furthermore, the Commission finds that there was a dispute ("contestation") concerning a right, as required for the applicability of Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R., Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, pp. 29-30, paras. 79 et seq.).   This dispute concerned the scope of the applicant's pension claims and was brought before the Constitutional Court by the applicant's complaint of 11 August 1988.   It is true that, in its earlier case-law, the Court has held that issues of constitutional law do not concern disputes about civil rights within the meaning of Article 6 para. 1 (Art. .6-1) (see Eur. Court H.R., Buchholz judgment of 6 May 1981, Series A no. 42, p. 15, para 48; Sramek judgment of 22 October 1984, Series A no. 84, p. 17, para. 35). In the Ruiz-Mateos case, however, the Court found that also proceedings before a constitutional court concern disputes about civil rights and obligations when there is a close link between the ordinary proceedings and the Constitutional Court's proceedings (see Eur. Court H.R., Ruiz- Mateos judgment of 23 June 1993, Series A no. 262, p. 24, para. 59; see also Süssmann v. Germany, Comm. Report 12.4.95).   In the present case, a decision by the Constitutional Court to repeal the transitional provisions could have led to the granting of the applicant's full pension claim.   49.    The Commission therefore finds that Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings on the applicant's pension claim before the Constitutional Court.   b.     Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   50.    The applicant submits that the Austrian reservation to Article 6 (Art. 6) of the Convention did not prevent the Commission from considering the question of the lack of a public hearing before the Constitutional Court.   The reservation was not applicable and was in any event invalid as it did not comply with the criteria of Article 64 of the Convention. Furthermore, having regard to Section 19 para. 1 of the Constitutional Court Act which stipulates that the Constitutional Court shall in principle hold public hearings, he could not be deemed to have waived his right to a public hearing.   Also the fact that the Regional Government did not file submissions was not a good reason for deciding on his complaint without a public hearing.   51.    The Government submit that the Austrian reservation to Article 6 (Art. 6) of the Convention is valid and applicable to the proceedings before the Constitutional Court, and it therefore prevents the Commission from examining this issue.   In any event, the absence of a hearing before the Constitutional Court did not violate Article 6 para. 1 (Art. 6-1).   The applicant, a university professor in constitutional law, and his lawyer must have been aware of the Constitutional Court's practice, based on Section 19 para. 4 of the Constitutional Court Act, to hold only in exceptional cases a public hearing in proceedings on complaints by individuals.   Nevertheless the applicant did not expressly request a public hearing and must therefore be deemed to have waived his right to such a hearing.   There was also no public interest in holding a public hearing, since the Regional Government did not submit any observations on the applicant's complaint.   52.    The Austrian reservation to Article 6 (Art. 6) of the Convention provides as follows:         "The provisions of Article 6 (Art. 6) of the Convention       shall be so applied that there shall be no prejudice to the       principles governing public court hearings laid down in       Article 90 of the 1929 version of the Federal       Constitutional Law."   53.    However, the Commission need not determine whether it is prevented by the above reservation from examining the question of the lack of a public hearing before the Constitutional Court, because, for the following reasons, the lack of a public hearing in the proceedings before the Constitutional Court did not infringe Article 6 para. 1 (Art. 6-1) of the Convention.   54.    The Commission observes that in the present case the Regional Education Council and the Regional Government which decided on the applicant's pension claim were purely administrative bodies.   Having regard to the specific nature of the applicant's complaint, namely the allegation that the transitional provisions of the amendment to the Pension Act which reduced his pension rights were unconstitutional, the Constitutional Court was the only body which could determine this aspect of the dispute between the applicant and the pension authorities.   The applicant was therefore in principle entitled to an oral hearing before the Constitutional Court as none of the exceptions laid down in the second sentence of Article 6 para. 1 (Art. 6-1) applied (cf. Eur. Court H.R., Håkansson and Sturesson judgment of 21 February 1990, Series A no. 171, p. 20, para. 64).   55.    However, it is the practice of the Austrian Constitutional Court not to hear the parties unless one of them expressly requests it to do so.   In such a situation the applicant could have been expected to ask for a hearing if he had found it important that one be held (see Eur. Court H.R., Håkansson and Sturesson judgment loc. cit., pp. 20 et seq., para. 67).   The question of whether or not an applicant has requested a public hearing only becomes irrelevant for examining compliance with Article 6 para. 1 (Art. 6-1) of the Convention when the respective domestic law excludes the holding of public hearings (see Eur. Court H.R., Diennet judgment of 26 September 1995, para. 34, to be published in Series A no. 325-A).   56.    As the applicant did not make such a request, he must be deemed to have unequivocally waived his right to a public hearing (see Eur. Court H.R., Zumtobel judgment of 21 September 1993, Series A no. 268, p. 14, para. 34).   Furthermore, it does not appear that the litigation involved any questions of public interest warranting a public hearing.           CONCLUSION   57.    The Commission concludes, by 17 votes to 11, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.     Secretary to the Commission                  President of the Commission         (H.C. KRÜGER)                                   (S. TRECHSEL)                                                           (Or. English)            CONCURRING OPINION OF MM. G. JÖRUNDSSON, H.G. SCHERMERS,                        M. PELLONPÄÄ, B. MARXER.         We voted with the majority of the Commission to the effect that there had been no breach of Article 6 of the Convention.   However, we do not share the opinion of the majority of the Commission that Article 6 of the Convention applies in this case.         Article 6 para. 1 of the Convention only applies to disputes over "rights and obligations" which can be said, at least on arguable grounds, to be recognised under domestic law.   Article 6 does not in itself guarantee any particular content for "rights and obligations" in the substantive law of the Contracting States (cf. Eur. Court H.R., James and others judgment of 21 February 1986, Series A no. 98, p. 46, para. 81, and Lithgow and others judgment of 8 July 1986, Series A no. 102, p. 70, para. 192).   The dispute which gives a right to a determination by a court must be "genuine and of a serious nature" (see Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 14, para. 32).         In the present case the applicant, in his complaints to the Constitutional Court of 22 February 1986 and 11 August 1988, challenged the constitutionality of provisions of the Pensions Act as amended on 26 September 1985.   In his first complaint he attacked provisions which provided for the suspension of a widow's or widower's pension while the person entitled was still gainfully employed, and the transitional provisions accompanying the introduction of a widower's pension. In his second complaint he only attacked the constitutionality of the latter provision.         Pursuant to part II. para. 2 of the 8th Amendment to the Pensions Act, the applicant was entitled to a reduced pension.   He does not submit that the Regional Government did not correctly apply the law in force.   It has to be stressed that ordinary Austrian law unequivocally excluded the applicant from the benefit of a full widower's pension. In his complaint to the Constitutional Court he attacked the existing legislation with a view to obtaining a basis for new claims.   The subject matter of the applicant's constitutional complaint was not a claim to a full widower's pension but the applicant's allegation that the legislation in force which did not support such a claim was in conflict with constitutional provisions of Austrian law.   The constitutional complaint therefore did not concern an existing right but the creation of a new right which was more favourable to his claim for a full widower's pension.   As there was no existing right, the applicant was merely able to allege before the Constitutional Court that he ought to have one.   However, such an allegation is not, of itself, sufficient to constitute a "civil right" in domestic law.         In this respect the present case must also be distinguished from the Ruiz-Mateos judgment of the European Court of Human Rights, where the applicants complained about the proceedings before the Spanish Constitutional Court, in which the latter examined the constitutionality of an expropriation by law which had deprived them of a previous right (see Eur. Court H.R., Ruiz-Mateos judgment of 23 June 1993, Series A no. 262, p. 24, paras. 58-59; see also Procola judgment of 28 September 1995, para. 39, to be published in Series A no. 326).         Furthermore it should be noted that Article 13 of the Convention does not guarantee a remedy allowing a Contracting state's statutes as such to be challenged before a national authority on the ground of their being contrary to the Convention or to equivalent domestic legal norms (see James and Others judgment of 21 February 1986, Series A no. 98-B, p. 47, para. 85; Leander judgment of 26 March 1987, Series A no. 116, p. 30, para. 77).   Even less can Article 6 apply to proceedings, in which the review of the constitutionality of ordinary legislation is sought, like, in the present case, the provisions of the Austrian Pensions Act.         For these reasons we find that the proceedings before the Constitutional Court did not concern the determination of "civil rights and obligations" within the meaning of Article 6 para. 1 of the Convention.                                                           (Or. English)     DISSENTING OPINION OF MM. C.L. ROZAKIS, E. BUSUTTIL, A. WEITZEL, J.-C. SOYER, MRS. G.H. THUNE, MRS. J. LIDDY, MM. L. LOUCAIDES, M.A. NOWICKI, N. BRATZA           We agree with the majority that Article 6 para. 1 of the Convention applies to the proceedings before the Constitutional Court. However, for the following reasons, we find that the applicant's right under Article 6 para. 1 to a public hearing before this court has been violated.         We do not find that the Commission is prevented from examining this question by the Austrian reservation to Article 6 of the Convention.   This reservation reads as follows:         "The provisions of Article 6 of the Convention shall be so       applied that there shall be no prejudice to the principles       governing public court hearings laid down in Article 90 of       the 1929 version of the Federal Constitutional Law."         The European Court of Human Rights has considered the question of the compatibility of declarations and reservations with Article 64 of the Convention on several occasions (see for example, Eur. Court H.R., Belilos judgment of 29 April 1988, Series A no. 132; Weber judgment of 22 May 1990, Series A no. 177; Chorherr judgment of 25 August 1993, Series A no. 266-B; Gradinger judgment of 23 October 1995, para. 51, to be published in Series A no. 328-C). The Court has held that Article 64 para. 1 of the Convention requires "precision and clarity" and that the requirement set forth in Article 64 para. 2 that a reservation shall contain a brief statement of the law concerned is not a "purely formal requirement but a condition of substance" which "constitutes an evidential factor and contributes to legal certainty" (Belilos judgment, paras. 55 and 59).         As regards the compatibility of the Austrian reservation to Article 6 of the Convention with the above criteria under Article 64 of the Convention, the Commission has found in the Stallinger and Kuso case (Stallinger and Kuso v. Austria, Comm. Report 7.12.95, para. 61) as follows:         "In this respect the Commission notes that the reservation at       issue does not contain a "brief statement" of the law which is       said not to conform to Article 6 of the Convention. From the       wording of the reservation it might be inferred that Austria       intended to exclude from the scope of Article 6 all proceedings       in civil and criminal matters before ordinary courts insofar as       particular laws allowed for non-public hearings. However, a       reservation which merely refers to a permissive, non-exhaustive,       provision of the Constitution and which does not refer to, or       mention, those specific provisions of the Austrian legal order       which exclude public hearings, does not "afford to a sufficient       degree 'a guarantee ... that [it] does not go beyond the       provision expressly excluded' by Austria" (see Gradinger       judgment, para. 51, Chorherr judgment, para. 20). Accordingly,       the reservation   does not satisfy the requirements of Article 64       para. 2 of the Convention.   In such circumstances the Commission       finds that there is no need also to examine whether the other       requirements of Article 64 were complied with."         We find that the above reasoning also applies to the present case.         The next question concerns the absence of a public hearing before the Constitutional Court.   The Regional Education Council and the Regional Government which decided on the applicant's pension claim were purely administrative bodies.   Having regard to the specific nature of the applicant's complaint, namely the allegation that the transitional provision of the amendment to the Pension Act which reduced his pension rights were unconstitutional, the Constitutional Court was the only body which could determine this aspect of the dispute between the applicant and the pension authorities.   The applicant was therefore in principle entitled to an oral hearing before the Constitutional Court as none of the exceptions laid down in the second sentence of Article 6 para. 1 applied (cf. Eur. Court H.R., Håkansson and Sturesson judgment of 21 February 1990, Series A no. 171, p. 20 para. 64).         It is the practice of the Austrian Constitutional Court not to hear the parties unless one of them expressly requests it to do so. The Commission has repeatedly found that in such a situation the person concerned could be expected to ask for a hearing if he found it important that one be held and that the failure to do so must be deemed to constitute an unequivocal waiver of the right to a public hearing (see e.g. above mentioned Håkansson and Sturesson judgment, pp. 20 et seq., para. 67; Zumtobel judgment of 21 September 1993, Series A no. 268, p.