AS TO THE ADMISSIBILITY OF
by Karl-Heinz WALDEN
The European Court of Human Rights (Fourth Section), sitting on 16 March 2000 as a Chamber composed of
Mr M. Pellonpää, President,
Mr G. Ress,
Mr A. Pastor Ridruejo,
Mr L. Caflisch,
Mr J. Makarczyk,
Mr I. Cabral Barreto,
Mrs N. Vajić, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 7 September 1996 and registered on 20 November 1996,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant is a German citizen born in 1928 and residing in Liechtenstein since 1967. In the proceedings before the Court he is represented by Mr G. Marxer, a lawyer practising in Vaduz.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's wife retired in 1985 and received a single old age pension (einfache Altersrente). Since 1 January 1991, the monthly allocation amounted to 1,880 Swiss Francs (SFR). The applicant retired in 1993.
On 7 December 1993 the Liechtenstein Old Age Pension Insurance Institution (Alters und Hinterlassenenversicherung) fixed a common married couple's pension (Ehepaar-Altersrente) for the applicant and his wife in the amount of SFR 1,880 per month. In accordance with the relevant legislation, the husband is entitled to receive the married couple's pension, while the wife's former claim to a single old age pension ceases and is replaced by a derived right to payment of half of the common pension. Further, the married couple's pension is calculated on the basis of the husband's contribution years. It is 150% of the husband's single pension. As the applicant's insurance period was shorter than his wife's, the resulting amount was lower than his wife's single pension. According to the relevant provisions a compensation was added to arrive at the amount of his wife's former pension.
On 13 December 1993 the applicant filed an objection (Vorstellung) against the above decision. He argued that the method of calculation applied rendered his own contributions null and void as the married couple's pension was no higher than his wife's single pension. Further, he held that he and his wife were discriminated against in relation to other married couples. He requested two separate pensions to be paid instead of the common pension.
On 20 January 1994 the Liechtenstein Old Age Pension Insurance Institution dismissed the applicant's objection. As to the applicant's first argument it observed that the Liechtenstein pension scheme was based on the principle of social solidarity. Thus, it did not grant pension claims in direct relation to the contributions paid. As to the applicant's second argument, the Insurance Institution agreed that there was unequal treatment of men and women as only the husband was entitled to the married couple's pension, which was calculated solely on the basis of the husband's contribution years. Moreover, in a case like the applicant's where the husband had an incomplete insurance career while his wife's was complete, a lower married couple's pension was paid than in the opposite case. However, the legal provisions were clear and precise and did not permit any other interpretation. The question could, thus, only be resolved by an amendment of the law. Such an amendment was envisaged for December 1996.
On 21 September 1994 the Liechtenstein Court of Appeal (Obergericht), upon the applicant's appeal, confirmed the Insurance Institution's decision as being in conformity with existing legislation even if it was contrary to the principle of non-discrimination. It also refused the applicant's motion to interrupt the proceedings and to request the State Court (Staatsgerichshof) to examine the constitutionality of the contested provisions of the Old Age Pension Act. It found that in the event of an abrogation of these provisions the applicant's claims would not find any other legal basis without further initiative of the legislator.
On 15 May 1995 the Liechtenstein Supreme Court (Oberster Gerichtshof) dismissed the applicant's appeal on points of law. It stated that the unequal treatment of husband and wife in the current pension scheme could not be remedied by the courts, but required an amendment of the relevant law by the legislator.
On 23 October 1995 the applicant, after having lodged a complaint with the State Court, challenged State Court judge Hoch for bias on the ground that the latter had written a dissertation on social security law, which had been partly financed and distributed by the Old Age Pension Insurance Institution.
On 24 May 1996 the Liechtenstein State Court, sitting as a Constitutional Court (Verfassungsgerichtshof), rejected the applicant's challenge for bias and partly granted his constitutional complaint.
As to the applicant's challenge for bias, the State Court found that the past financial support and distribution of a dissertation by a public law institution did not create such a personal link as to affect a judge's impartiality.
As to the applicant's complaint, the State Court found that the applicant's constitutional rights were violated by the Supreme Court's decision. The married couples' pension system, based on a traditional view of marriage, was unconstitutional as being contrary to the principle of non-discrimination on the basis of gender, in particular as only the husband's contribution years were decisive for the calculation of the married couple's pension. Moreover, it was unconstitutional as being contrary to the general principle of equal treatment, in that married and unmarried couples were treated differently with regard to their pension benefits.
However, the State Court rejected the applicant's request to quash the contested judgment and to set aside the relevant provisions in the Old Age Pension Act. It noted that it would, technically speaking, be possible to set aside a number of provisions with the result that the applicant and his wife would each be entitled to a single old age pension. However, this would cause massive disadvantages to others, in particular to married couples where the wife did not have an own insurance career. The situation was even more complex in view of the Social Security Agreement between Liechtenstein and Switzerland which could only operate if the requirements for pension claims were more or less identical in both States. In conclusion, the State Court did not see itself in a position to set aside the contested provisions, given the complexity of social security law and the statutory time-limit of a maximum of six months for suspending an abrogation. The State Court went on to say that despite these considerations the continuing application of unconstitutional legislation for a protracted period would be unacceptable. However, a comprehensive legal reform with the explicit aim of guaranteeing gender equality in social security law was already being prepared and Parliament had requested the Government to submit all necessary amendments of social security law before the end of 1996. Moreover, the draft amendment of the Old Age Pension Act included provisions according to which couples in the position of the applicant and his wife would be entitled to two single pensions. Having regard to the time-table for the pending reform, the above-mentioned maximum time-limit of six months for enacting new legislation could possibly be complied with. Nevertheless, it was not justified to annul the unconstitutional provisions with a six-months suspension as the envisaged date of entry into force, namely 1 January 1997, would become illusory if for instance a referendum was requested. In this case, the annulment would become effective and would entail all the negative consequences described above.
In fact, the amendment to the Old Age Pension Act was adopted in September 1996 (see below). According to its provisions the applicant and his wife each receive a single pension of SFR 1,086 and 1,990, respectively, as of 1 January 1997.
B. Relevant Domestic Law
The Liechtenstein Old Age Pension Act (Gesetz über die Alters- und Hinterlassenenversicherung) of 14 December 1952, Law Gazette (LGBl) 1952/29, before its amendment, provided for common married couple's pensions which were to be paid as soon as both spouses reached the retirement age. When a common pension was paid the wife's claim for pension payments expired. Only the husband's contribution years were decisive for the calculation of the married couple's pension.
By amendment of 18 September 1996, Law Gazette 1996/192, to the Old Age Pension Act, the married couple's pension system was replaced by a scheme providing single pensions for both spouses. Married couple's pensions existing at the time of the amendment were transformed into two single pensions as of 1 January 1997, subject to the clause that the total amount of both pensions was not to be lower that the previous married couple's pension.
1. The applicant complains about discriminatory treatment under the Liechtenstein married couples' pension system. In his original application he did not invoke any particular provision of the Convention. In his observations the applicant relies on Article 14 of the Convention taken in conjunction with Articles 8 and 12 of the Convention as well as Article 1 of Protocol No. 1.
2. He also complains, without invoking any particular provision of the Convention, about a lack of impartiality of State Court judge Hoch, who had published a dissertation with the support of the Old Age Pension Insurance Institution.
The application was introduced on 7 September 1996 before the European Commission of Human Rights and registered on 20 November 1996.
On 22 October 1998 the Commission decided to communicate the application to the respondent Government.
The Government's written observations were submitted on 10 March 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 15 June 1999, also after an extension of the time-limit.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
1. The applicant complains about discriminatory treatment under the Liechtenstein married couples' pension system.
The Court finds that this complaint falls to be considered under Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention.
Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government submit that the Liechtenstein pension system is based on the principle of solidarity and on a revolving fund. Contributions by persons create a right to a pension, but the amount of the contributions alone does not create an entitlement to a specific amount of pension nor to a specific share in the pension fund. Therefore, referring to case-law of the European Commission of Human Rights, the Government argue that the application is incompatible ratione materiae with the provisions of the Convention. Consequently, there is also no violation of Article 14 of the Convention.
Even assuming that Article 1 of Protocol No. 1 was applicable, there was no violation of Article 1 of Protocol No. 1 as this provision does not confer the right to a specific amount of a pension. The fixing of a common married couple's pension did not transgress the wide margin of appreciation left to the State in the field of “taxes and other contributions”. Moreover, the applicant's complaint under Article 14 taken together with Article 1 of Protocol No. 1 had meanwhile become without interest as the amendment of the Old Age Pension Act had removed the discrimination complained of. The Government further submit that the reasons for the Liechtenstein State Court to refrain from quashing the Supreme Court's decision and from annulling the relevant legislation were that it would have acted as legislator in a very complicated and highly sensible matter and the consequences for other cases could hardly have been foreseen. Moreover, action of the legislator was already in progress at the material time. Thus, the Liechtenstein State Court acted in accordance with the requirements of legal certainty.
The applicant submits that Article 1 of Protocol No. 1 is applicable in the present case as the pension system is no pure solidarity system but is based on obligatory contributions and creates a right to pension payments corresponding to the amount of the contributions made to the fund as well as to the period of time during which the contributions were made. The applicant contends that he was discriminated against on account of his gender and marital status. The State Court's judgment, despite its finding in this respect, did not annul the relevant legislation and the decisions applying it to his case and did therefore not remedy the violation of the Convention. In his view the continued application of the provisions at issue did not serve the interest of legal certainty as his case was the only one which had been brought before the State Court to complain about the married couple's pension system. The State Court should, thus, have retroactively amended the calculation of his and his wife's pensions.
According to the Court's established case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols so that there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see the Gaygusuz v. Austria judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1141, § 36). The Court will therefore examine whether the facts of the present case fall within the scope of Article 1 of Protocol No. 1.
In this respect the Court notes that Protocol No. 1 has entered into force with regard to Liechtenstein on 14 November 1995. The married couple's pension system at issue was applied to the applicant subsequent to that date and the State Court's decision was given in May 1996. Thus Article 1 of Protocol No. 1 applies ratione temporis.
The Court recalls that payment of contributions to a social security fund may create a property right protected by Article 1 of Protocol No. 1 (cf. no. 11285/84, Dec. 7.12.87, D.R.54, p. 88 at p. 94; no. 10671/83, Dec. 4.3.85, D.R. 42, p. 229 at p. 232). Moreover, the Court, in the Gaygusuz case, referring to the pecuniary nature of the entitlement to a given social security benefit, found that Article 1 of Protocol No. 1 was applicable without it being necessary to rely solely on the link between entitlement and the obligation to "pay taxes or other contributions" (see the above-mentioned Gaygusuz judgment, p. 1142, § 41). In the present case, the applicant had a pecuniary right to a common married couple's pension, the calculation of which he considers to be discriminatory. Thus, the applicant's right to the old age pension at issue falls within the ambit of Article 1 of Protocol No. 1 and, consequently, Article 14 also applies.
Further, the Court considers that despite the State Court's finding of May 1996 that the applicant's right to non-discrimination had been violated as regards his old age pension rights, the applicant can claim to be a victim within the meaning of Article 34 of the Convention of the alleged violation as the contested provisions were not set aside and, thus, remained applicable to him until 1 January 1997, when the amendment of the Old Age Pension Act entered into force.
However, the Court notes that the parties' submissions in the present case concentrate on the question whether the State Court should have set the contested provisions aside. While the Government argue that the State Court was prevented from doing so for reasons of legal certainty, the applicant contends that it should not only have annulled the relevant legislation but should have done so with retroactive effect.
In this context, the Court recalls its case-law according to which the principle of legal certainty, which is necessarily inherent in the law of the Convention, may dispense States from questioning legal acts or situations that antedate judgments of the Court declaring domestic legislation incompatible with the Convention. The same considerations apply where a constitutional court annuls domestic legislation as being unconstitutional (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 26, § 58). Moreover, it has also been accepted, in view of the principle of legal certainty that a constitutional court may set a time-limit for the legislator to enact new legislation with the effect that an unconstitutional provision remains applicable for a transitional period (cf. no. 22651/93, Dec. 18.10.95, D.R. 83, p. 14).
It is true that, in the present case, the State Court in its decision of 24 May 1996 did not annul the provisions concerning the married couple's pension which it had found to be unconstitutional. It refrained from doing so, having particular regard to the fact that it could only suspend an abrogation for a maximum of six months. Given the complexity of social security law, this appeared too short a period for enacting new legislation, even though a comprehensive reform of social security law with the aim of guaranteeing gender equality was already in progress and was scheduled to be completed by the end of 1996. In view of the detrimental effects which an annulment of the relevant provisions might have on the pension claims of others, the State Court refused to annul the provisions with a six months' suspension, as the holding of a referendum, for instance, could delay the legislative procedure. The Court observes that in fact, the amendment of the Old Age Pension Act was adopted in September 1996. Taking all these circumstances into account, the Court finds that the present case does not differ substantially from the case in which a Constitutional Court annuls an unconstitutional provision and sets a time-limit for enacting new legislation. It, therefore, considers that the State Court's decision, which had the effect that unconstitutional legislation remained applicable to the applicant for a limited period, served the interests of legal certainty. Given the brevity of this period which ended about seven months after the State Court's decision, namely on 1 January 1997 when new legislation entered into force, the continued application of the pension provisions at issue can also be regarded as proportionate.
In sum there is no appearance of a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1.
It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
2. The applicant also complains about a lack of impartiality of State Court judge Hoch, who had published a dissertation with the support of the Old Age Pension Insurance Institution. The Court will consider this complaint under Article 6 § 1 of the Convention.
Article 6 § 1, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”
The Government submit that judge Hoch was an impartial judge. It is true that he was the author of a thesis on the history of the Liechtenstein social security law which he completed in November 1990 with the financial support of the social security institution. However, he made a partly critical analysis stating that equality of men and women within the social security system became increasingly more important and that a reform of the pension system was called for. Besides, the Government, relying in particular on the Fey v. Austria judgment of 24 February 1993 (Series A no 255-A, § 30), noted that not even a judge who took pre-trial decisions was per se to be considered as partial. In the present case the link between judge Hoch and the proceedings at issue was even weaker than in the above cited case and he cannot therefore be regarded as partial.
The applicant did not file any submissions on this issue.
The Court finds that Article 6 applies to the proceedings in the State Court which was sitting as a Constitutional Court in the present case, as they could have resulted in an abrogation of the contested provisions of the Old Age Pension Act leading to a reassessment of the applicant's pension rights, thus being directly decisive for his civil rights (see the Pauger v. Austria judgment of 28 May 1997, Reports 1997-III, p. 894, §§ 45-47).
The Court considers for the same reasons as set out above, that the applicant can claim to be a victim within the meaning of Article 34 of the Convention of the alleged violation.
As to the question of impartiality, the Court recalling its case-law (see for instance the Pullar v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 792, § 30), notes that there is no issue of subjective impartiality in the present case. Nor does the mere fact that judge Hoch elaborated a thesis on the history of the Liechtenstein Old Age Pension System with the financial support of the social security institution - a thesis which, moreover, according to the Government's uncontested submissions, expressed a critical opinion of the married couple's pension system at issue - suffice to show that the applicant's fears as regards that judge's alleged lack of impartiality were objectively justified.
It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Vincent Berger Matti Pellonpää
33916/96 - -
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