CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 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. 31067/96                       by Anton Joseph NIEMAN                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms.    M.-T. SCHOEPFER, 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 27 November 1995 by Anton Joseph NIEMAN against the Netherlands and registered on 19 April 1996 under file No. 31067/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch national, born in 1932, and resides in Voorburg, the Netherlands.        The facts of the case, as submitted by the applicant, may be summarised as follows.        Between 23 October 1958 and 1 May 1972, the applicant was employed at the Ministry of Defence. As from 1 May 1972, the applicant was found incapacitated for work and was granted an invalidity pension under the General Civil Service Pension Act (Algemene Burgerlijke Pensioenwet).        On 1 July 1979, the Act of 11 April 1979 containing an amendment to the General Civil Service Pension Act entered into force setting a specified minimum level for invalidity pensions granted under the General Civil Service Pension Act.        Pursuant to Article XIII of the Act of 11 April 1979, published in the Official Gazette (Staatsblad) nr. 304, persons whose invalidity pension was lower than this guaranteed minimum level could file a written request for a recalculation of their benefits in order to bring their pensions in conformity with the new rules. The eligible persons were informed of this possibility by a circular letter nr. 1179.115 of October 1979.        Although the applicant's benefits were lower than the guaranteed minimum level, he did not apply for a recalculation of his pension.        In May 1984, following an investigation, it had appeared to the direction of the General Civil Service Pension Fund (Algemeen Burgerlijk Pensioenfonds, hereinafter referred to "ABP") that a large number of persons eligible for a recalculation had failed to submit a request to this end. It was decided to make an ex officio recalculation of the pensions of those persons who had not made such a request and to grant that recalculation retroactive effect as from 1 May 1983.        By letter of 17 June 1985, the ABP informed the applicant that his pension had been recalculated ex officio and that this recalculation would be applied with retroactive effect as from 1 May 1983.        On 13 March 1986, the applicant's brother, a Dutch diplomat at that time working in Ankara who - in view of the applicant's difficulties to manage his financial and administrative affairs - helped the applicant in managing such matters, filed a request on behalf of the applicant to the ABP. He requested the ABP to review the recalculation of his brother's pension to the effect that it be granted retroactive effect as from 1 July 1979. It was submitted that it did not appear from the applicant's administration that he had ever been informed before 17 June 1985 that he could apply for a recalculation of his pension.        On 13 June 1986, the ABP legal department requested the ABP medical department to verify whether the applicant had been incapable, between October 1979 and January 1980, to file a request for a recalculation of his invalidity pension. According to the ABP medical department, the applicant had not been incapable to file such a request.        In a letter dated 16 September 1986, sent on 27 October 1986, the ABP informed the applicant that the request of 13 March 1986 was rejected. The applicant filed an objection (bezwaar) against this decision on 4 December 1986 with the ABP Supervisory Board (Raad van Toezicht van het Algemeen Burgerlijk Pensioenfonds).        By decision of 30 December 1987, the ABP Supervisory Board declared the objection inadmissible for having been lodged out of time. The applicant filed an appeal with the Civil Service Tribunal (Ambtenarengerecht).        In the course of the proceedings before the Civil Service Tribunal, the ABP Board (Bestuur van het Algemeen Burgerlijk Pensioen- fonds), which had replaced both the direction and Supervisory Board of the ABP as from 1 January 1988, informed the applicant on 11 August 1989 that it had noted that the decision sent on 27 October 1986 had not been communicated to the applicant's brother. The ABP Board stated that it had decided to reconsider the challenged decision, to declare the objection admissible and to examine it on the merits. It did, however, reject the objection as ill-founded.        The ABP Board noted that a circular letter had been sent to holders of a pension in October 1979 informing them when a request for a recalculation could be submitted and that the applicant, although qualifying for a recalculation, had failed to submit such a written request.        It further held that it was apparent from the system of the General Civil Service Pension Act that requests for retroactive effect could only be granted in cases where a timely request had been made, whereas in cases where such a request had not been timely made, the General Civil Service Pension Act foresees a retroactive effect of a maximum of one year. The ABP Board noted that, in accordance with this system, Article XIII para. 2 of the Act of 11 April 1979 states that a request for recalculation which has not been made within one year following the entry into force of that Act, the recalculation cannot be granted a retroactive effect of more than one year before the first day of the month in which the request has been made. The ABP Board, consequently, held that the decision in the applicant's case was in conformity with the system and spirit of the General Civil Service Pension Act.        The ABP Board further noted the opinion of the ABP medical department that the applicant had not been incapable to manage matters relating to his pension. Insofar as the applicant had contended that he had never received the circular letter of October 1979, the ABP Board stated that it could not be excluded that there were cases where this letter had not reached its destination. Even assuming it had not reached the applicant, it could, however, not set aside imperative statutory rules.        The applicant filed an appeal against the decision of 11 August 1989 with the Civil Service Tribunal, which rejected it as ill-founded on 30 January 1990. It held, inter alia, that the approach taken in the applicant's case as regards the limited retroactive effect was in conformity with decisions taken in a large number of other similar cases and that these decisions had been accepted on appeal by the Central Appeals Tribunal (Centrale Raad van Beroep).        The applicant filed an appeal with the Central Appeals Tribunal, which rejected it on 11 June 1992 and upheld the challenged judgment of 30 January 1990.        By letter of 19 February 1993, the applicant filed a new request to the ABP Board to review its decision of 17 June 1985, which was rejected on 16 September 1993. On the basis of medical statements submitted, the Board accepted that the applicant had not been capable to secure his pension interests appropriately between 14 and 23 October 1979, but did not find it established that the applicant could not have timely requested a recalculation of his pension after that period. Consequently it concluded that the factual basis of the decision was correct.        The applicant's appeal to the Regional Court (Arrondissements- rechtbank) of The Hague was rejected on 9 March 1994. The Regional Court noted that the merits of the applicant's case had already been determined in the previous proceedings before the Central Appeals Tribunal and held that the medical statements the applicant now submitted could already have been produced in those previous proceedings.        The applicant's subsequent appeal to the Central Appeals Tribunal was rejected on 24 May 1995. This decision was communicated to the applicant on 1 June 1995. The Central Appeals Tribunal held that the applicant's arguments were the same as those which it had already examined in proceedings having resulted in the decision of 11 June 1992. It did not consider the medical information submitted by the applicant to constitute a circumstance referred to in Article S 3 para. 1 (old) of the General Civil Service Pension Act, according to which a decision taken shall be reviewed when it rests on a factually incorrect basis or where it appears, after it has been taken, that the decision should be based on other facts.     COMPLAINTS        The applicant complains that the refusal to grant the recalculation of his invalidity pension retroactive effect until 1 July 1979 is contrary to Article 1 of Protocol No. 1.        The applicant further complains that the proceedings and refusal at issue violated his rights under Article 6 of the Convention.     THE LAW        The applicant complains that the proceedings and decision concerning his request to grant the recalculation of his invalidity pension retroactive effect until 1 July 1979 violated his rights under Article 6 (Art. 6) of the Convention and under Article 1 of Protocol No. 1 (P1-1).        However, the Commission is not required to decide whether or not the facts submitted by the applicant disclose any appearance of a violation of the Convention as, in accordance with Article 26 (Art. 26) of the Convention, the Commission finds that the final decision regarding the applicant's case was given by the Central Appeals Tribunal on 11 June 1992, which is more than six months before the date on which the application was submitted.        This finding is not altered by the subsequent proceedings instituted by the applicant, as they concerned an unsuccessful request for a revision of a final decision on the basis of an alleged incorrect factual basis of the initial refusal.        The Commission recalls that the refusal of an application to reopen proceedings does not restart the running of the six months' period referred to in Article 26 (Art. 26) of the Convention, unless it is successful and actually results in a reopening (cf. No. 23949/94, Dec. 8.5.94, D.R. 77, p. 140).         It follows that the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.          For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber