CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 février 1997

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 22413/93                       by A. G.                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 27 February 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 7 May 1993 by A. G. against Austria and registered on 4 August 1993 under file No. 22413/93;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      28 April 1995 and the observations in reply submitted by the      applicant on 17 July 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian national, born in 1928 and residing in Graz.   He is a former politician and was, inter alia, Mayor of Graz. Before the Commission he was initially represented by Mr. L. Kaltenbäck, a lawyer practising in Graz, and is now represented by Mrs. E. Simma, a lawyer practising in Graz.        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    Particular circumstances of the case        In 1983 the applicant retired as Mayor of Graz.   On 18 March 1983 the Graz Executive Council granted the applicant a pension as former Mayor of Graz in the amount of AS 107,928 per month.   His pension was calculated according to the 1967 Statute of Graz (Stadtstatut), in its version of 1983.   In addition to his pension the applicant received a salary as civil servant of the Municipality of Graz in the amount of some AS 50,000.        Following public discussion on the pension entitlements of former politicians new legal provisions limiting pension claims of former politicians were adopted on federal and regional level.        On 1 November 1984 the Statute of Graz was also amended.   In particular Section 39b now provided that pension claims of members of the Executive Council were reduced if these members drew an income from the Federal State or the Region of Styria or from a company owned by the Republic or Styria.   In this case they were only entitled to draw as pension the difference between their full pension claim and their further income.   Similar provisions were adopted for Innsbruck and Vienna.        On 26 April 1985 the Graz Executive Council reduced the applicant's pension rights.   The Executive Council found that the applicant's pension right had to be recalculated on the basis of Section 39a and 39b of the Statute of Graz.   As the applicant continued to draw a salary as civil servant of Graz, his pension claim had to be reduced in the amount of this salary.        On 10 May 1985 the applicant appealed against this decision.        On an unspecified date the Graz Municipal Council dismissed the applicant's appeal.   This decision was served on him on 29 October 1985.        On 28 November 1985 the applicant filed a complaint against the Municipality Council's decision with the Constitutional Court (Verfassungsgerichtshof).   The applicant submitted that the decision was based on an unconstitutional act, namely on Section 39a and 39b of the amended Statute of Graz, as these provisions violated the principle of equality.        Following the complaint lodged by the applicant and complaints by several others, the Constitutional Court instituted proceedings for the examination of the constitutionality of Section 39b para. 1 of the Statute of Graz, as well as similar provisions in the Statute of Innsbruck and Vienna.        On 18 March 1987 the Constitutional Court repealed Section 39b para. 1 of the Statute of Graz as unconstitutional.   The Constitutional Court found that a provision which limits pension claims in case they coincide with an additional salary or pension would not, as such, violate the principle of equality even if it interfered with pension rights which had already been acquired.   However, in interfering with acquired rights the legislator had to respect the principle of equality.   Since the expectation to be entitled to a pension is also an element which a politician takes into consideration when he stands for office and exercises public functions, the legislator, in reducing pension claims, had to take such expectations into account.   If, like in the present case, the resulting reduction of the pension right is substantial and also concerns politicians who exercised public functions for a long time, the legislator was bound to distinguish between this group and other politicians who had only recently entered into office.   As the provision at issue failed to take this factual difference into account it violated the principle of equality.        On the same day the Constitutional Court quashed the Municipal Council's decision as being based on an unconstitutional act.   On 11 June 1987 this decision was served on the parties.        The Constitutional Court's decision was sharply criticised in the media.        On 5 June 1987 Parliament adopted the Federal Constitutional Act on the Limitation of Pension Claims of Highest Public Officials (Bundesverfassungsgesetz über die Begrenzung von Pensionen oberster Organe) according to which the pension claims of such officials can be limited by law to a maximum amount if they coincide with other income drawn from the Federal State or a Region.        On 3 July 1987 the Styria Regional Parliament (Landtag) amended again the Statute of Graz and reintroduced the provision the Constitutional Court had quashed on 18 March 1987 with retroactive effect from 1 November 1984 on.        On 19 May 1988 the Graz Municipal Council again dismissed the applicant's appeal of 10 May 1985.   It found that the Graz Executive Council's decision of 26 April 1985 was in accordance with the Statute of Graz as amended on 3 July 1987.        On 24 June 1988 the applicant lodged a further complaint with the Constitutional Court against the decision of 19 May 1988, referring to the Constitutional Court's previous decision of 18 March 1987.        On 2 March 1990 the Constitutional Court repealed a provision of the Rules of Procedure of the Graz Municipal Council (Geschäftsordnung für den Gemeinderat der Landeshauptstadt Graz) as unlawful, which had been applied when the Municipal Council took its decision of 19 May 1988 on the applicant's appeal.        On 7 March 1990 the Constitutional Court quashed the Graz Municipal Council's decision of 19 May 1988 because in the proceedings on the applicant's appeal an unlawful provision had been applied.        On 28 May 1991 the Graz Municipal Council dismissed for the third time the applicant's appeal of 10 May 1985.      On 4 July 1991 the applicant lodged a further complaint with the Constitutional Court against this decision, complaining that it violated the principle of equality, his right to property and his rights under Article 6 of the Convention.        On 28 September 1992 the Constitutional Court refused to entertain the applicant's complaint for lack of prospect of success and remitted the case to the Administrative Court (Verwaltungsgerichtshof).        On 30 September 1996 the Administrative Court applied to the Constitutional Court for review of the constitutionality of Section 39b para. 1 of the Statute of Graz and the provision of the Statute's Amendment of 3 July 1987 giving retrospective effect to this provision. The Administrative Court submitted that there existed doubts on the constitutionality of these provisions.   The Constitutional Act of 5 June 1987 allowed for reductions of pension claims but in the absence of any specific regulations therein limitations of pension claims by politicians were still subject to the principle of equality as applied by the Constitutional Court in its decision of 18 March 1987. Furthermore, the Constitutional Act of 5 June 1987 did not provide for a retroactive limitation of pension claims and in such circumstances it was questionable whether the Statute of Graz could do so.        On 4 November 1996 the Constitutional Court opened proceedings for the review of the constitutionality of the provisions attacked by the Administrative Court and communicated the case to the Styria Regional Government.        The case is still pending before the Constitutional Court.   B.    Relevant domestic law   a.    The Statute of Graz        The Statute of Graz (Statut der Landeshauptstadt Graz) includes provisions governing the payment of remuneration to members of the Municipal and Executive Council and of pensions to members of the Executive Council.   According to Section 39 members of the Executive Council are entitled to a remuneration and several specified indemnities.   A part of these payments are automatically deducted as contributions to a pension scheme.   According to Section 39a, as amended by Regional Act no. 11 of 1 November 1984, members of the Executive Council, as well as their surviving spouses or children are entitled to a pension, if they had been members of the Executive Council for at least 8 years and from the age of 55 years onwards. According to Section 39b para. 1, as amended by Regional Act no. 11 of 1 November 1984, this pension claim is reduced if they draw an income from the Republic or the Region of Styria or from a company owned by the Republic or Styria.   In this case they are only entitled to draw as pension the difference between their full pension claim and their further income.        Section 39b para. 1 was repealed by the Constitutional Court on 18 March 1987 but reenacted by Regional Act no. 71 of 3 July 1987 with retroactive effect from 1 November 1984 on.   b.    Federal Constitutional Act of 5 June 1987        On 5 June 1987 Parliament enacted the Federal Constitutional Act on the Limitation of Pension Claims of Highest Public Officials (Bundesverfassungsgesetz vom 5 Juni 1987 über die Begrenzung von Pensionen oberster Organe).   According to this Constitutional Act provisions of law may be enacted which provide that pension payments to highest public officials of the State or of a Region may only be granted up to a maximum amount if they coincide with other payments made by territorial entities or institutions which are subject to the control of the Court of Audit.   c.    Constitutional Court Proceedings        According to Article 140 of the Federal Constitution the Constitutional Court is competent to examine the constitutionality of provisions of Federal or Regional Acts.   The Constitutional Court does so if it is seized by a request of the Administrative Court, the Supreme Court, a Court of second instance or an Independent Administrative Senate and if these courts have to apply the provision at issue in proceedings pending before them.   The Constitutional Court may also examine the constitutionality of a provision of Federal or Regional Acts if it has to apply it in proceedings on individual complaints pending before it.   In examining the constitutionality, the Constitutional Court is bound by all provisions of Federal Constitutional Law.   As regards Constitutional Acts themselves, it may only examine whether Parliament has complied with the rules governing the proceedings for enacting Constitutional Acts.   COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the Convention that he did not have a fair hearing in the proceedings determining the limitation of his pension claim.   a.    He submits that it was contrary to the rule of law that the Federal Constitutional Act of 5 June 1987 and the Regional Parliament Amendment of the Statute of Graz of 3 July 1987, by which the very provision which the Constitutional Court had repealed had been enacted again, had rendered the Constitutional Court's decision of 18 March 1987 ineffective.   b.    He also submits that the Graz Municipality Council did not comply with the Constitutional Court's decision of 18 March 1987 and grant him his full pension right, but delayed its decision until Section 39b para. 1 of the Statute of Graz had been enacted again on which basis it could again refuse his appeal.   c.    He further submits that the Styria Regional Parliament, when amending the Statute of Graz on 1 November 1984 interfered with his acquired pension rights.   2.    The applicant also complains under Article 6 para. 1 of the Convention about the length of the proceedings by which his pension claim was determined.   3.    The applicant complains under Article 6 of the Convention about the Constitutional Court's refusal to entertain his complaint of 4 July 1991.   He submits that his pension claim was determined in first and second instance only by administrative authorities.   Article 6 would therefore require that he had access to the Constitutional Court, which alone could decide on the constitutionality of the legislation at issue.   4.    Lastly, he complains under Article 1 of Protocol No. 1 about a violation of his rights to peaceful enjoyment of his possession.   He submits that on 3 July 1987 the Regional Parliament enacted with retroactive effect Section 39b para. 1 of the Statute of Graz, the very provision which the Constitutional Court had repealed as unconstitutional, thus depriving him of parts of his acquired pension claim.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 7 May 1993 and registered on 4 August 1993.        On 17 January 1995 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 28 April 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 17 July 1995.   On 9 December 1996 the applicant submitted documents concerning the proceedings pending before the Constitutional Court.   THE LAW   1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the fairness of the proceedings determining the limitation of his pension claim in various respects.   He further complains under Article 1 of Protocol No. 1 (P1-1) about a violation of his rights to peaceful enjoyment of his possession.        However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention, insofar the applicant complains about the alleged unfairness of the proceedings at issue, or of Article 1 of Protocol No. 1 (P1-1), as under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        The Commission observes that after the Constitutional Court on 28 September 1992 had refused to entertain the applicant's complaint for lack of prospect of success and had remitted the case to the Administrative Court, the latter, on 30 September 1996, applied for a review of the constitutionality of the provisions allowing for a retroactive limitation of the applicant's pension claim.   The Constitutional Court, on 4 November 1996 opened proceedings for constitutional review and these proceedings are still pending.        The Commission therefore finds that the application in this respect is premature as no final decision has yet been taken in the above proceedings.        It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant also complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the proceedings by which his pension claim was determined.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar 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."        The Government submit that the applicant had failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention in relation to this complaint, since he had failed in the domestic proceedings to bring a complaint to the Administrative Court about the Municipal Council's inactivity in deciding again on his appeal after the Constitutional Court's decision of 18 March 1987.        In the Government's view Article 6 para. 1 (Art. 6-1) of the Convention is in any event not applicable to the proceedings on the applicant's pension claim.   In the case-law of the Convention organs pension claims of civil servants have been qualified as civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention as the legal nature of the underlying relationship between the state and its civil servants could be equated to one under a private employment contract.   In the present case, however, the applicant based his pension claim on the fact that he had held political offices, as a Mayor and as a Member of Parliament.   The applicant's pension claim was therefore essentially a public law claim given that the legal basis for these offices had been democratic elections and not appointment as a civil servant or an employment contract.        As regards compliance with the "reasonable time" requirement, the Government submit in particular that in the course of these proceedings the Constitutional Court had given five decision and the administrative authorities involved four.   In view of these particular circumstances the Government finds that the applicant's case has been dealt with by the Austrian authorities within a reasonable time.        This is disputed by the applicant.   As regards compliance with Article 26 (Art. 26) of the Convention he submits in particular that a complaint to the Administrative Court about the failure of administrative authorities to act was possible, but no such possibility existed for complaining about the inertia of the Administrative Court itself or the Constitutional Court.        In his view Article 6 para. 1 (Art. 6-1) of the Convention applies to the proceedings at issue.   The case-law of the Convention organs has confirmed that Article 6 (Art. 6) applies to pension claims of civil servants.   The state must be considered as the employer of civil servants and, consequently, also of politicians. Moreover, from the remuneration he had received as politician the applicant had made contributions to the pension scheme. In any event, he had not only acquired his pension claim by making contributions but also by his outstanding performance and efforts as a politician.        The Commission finds that the question whether the applicant could and should have filed a complaint with the Administrative Court complaining about the inactivity of the Municipal Council in dealing with his appeal in order to speed up proceedings is a matter related to the merits of the complaint and cannot be determined at this stage of the proceedings.   This complaint therefore cannot be rejected under Article 27 para. 3 (Art. 27-3) of the Convention for non-exhaustion of domestic remedies.        After an examination of this issue in the light of the parties' submissions, the Commission considers that it raises questions of fact and law which can only be determined by an examination of the merits. It follows that this complaint cannot be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaint about the length of the proceedings by      which his pension claim was determined;        DECLARES INADMISSIBLE the remainder of the application.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber