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THE FACTS

The applicants [Mrs Brigitte Hesse-Anger and Mr Richard Anger] are German nationals, born in 1943 and 1928 respectively, and living in Bonn.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants are married. The first applicant is a public official and has paid compulsory contributions (Pflichtbeiträge) to the Federal Republic of Germany's statutory old-age insurance scheme (gesetzliche Renten-versicherung) for forty years. The second applicant has been in receipt of an old-age pension since 1 January 1992. He paid voluntary contributions (freiwillige Beiträge) to the German old-age insurance scheme for a total of twenty-four years.

On 1 January 1986 the Survivor's Pension and Child-Raising Periods Act (Hinterbliebenenrenten- und Erziehungszeitengesetz) of 1985 came into force; it provided, inter alia, that earned income (Erwerbseinkommen) or, where appropriate, income replacement (Erwerbsersatzeinkommen) had to be taken into account in the calculation of survivor's pensions. Provision was made for an allowance (Freibetrag), which amounted to approximately 900 German marks at the time and did not affect the calculation of the pension.

In 1986 a number of constitutional appeals (Verfassungsbeschwerde) were lodged with the Federal Constitutional Court (Bundesverfassungs-gericht), challenging the Act and the amendments it had made to other pieces of legislation.

On 23 December 1986 the first applicant lodged such an appeal. She complained, in particular, that the new Act took earned income and income replacement into account in the calculation of survivor's pensions. She asserted that in her case such a measure amounted to expropriation in that, in view of the amount of her own old-age pension, she would not be entitled to a survivor's pension if her husband were to die before her. She further submitted that she and her husband had paid old-age insurance contributions throughout their working lives in order to ensure not only that they would subsequently receive an old-age pension but also that, if one of them died, the surviving spouse would be able to maintain an adequate standard of living by means of a survivor's pension.

In a letter of 9 March 1987 the Federal Constitutional Court informed the first applicant that it had brought her appeal to the attention of various constitutional bodies and institutions concerned by its subject matter, including the Federal Ministry of Labour and Social Affairs, and that it had asked for their opinions on the matter. After twice being granted an extension of the time allowed for submitting its opinion, the Federal Ministry of Labour and Social Affairs gave its reply on 19 July 1988 in the form of two legal opinions. The first applicant likewise obtained an extension and was given until 31 January 1989 to submit her observations.

On 27 January 1989 the first applicant sent the Federal Constitutional Court her observations, running to 129 pages, in reply to the opinion of the Federal Ministry of Labour and Social Affairs.

On 27 April 1995 the first applicant wrote to the Federal Constitutional Court in order to “supplement and update” her appeal submissions.

On 18 February 1998 the First Division of the Federal Constitutional Court dismissed two of the constitutional appeals lodged during 1986. In a forty-page decision it noted that the right to receive a survivor's pension did not fall within the scope of Article 14 of the Basic Law (Grundgesetz), which guarantees the right to peaceful enjoyment of private property. What was at stake was not a guaranteed right but a prospective benefit that was contingent on the death of the insured person and on the fact that, at the time of his or her death, he or she had been married to the beneficiary. Moreover, survivor's pensions were not calculated on the basis of the contributions paid by the insured person. They were based on the principle of solidarity between members of a pension scheme and were awarded to the insured person's spouse; there was no need for the beneficiary to have paid any contributions previously or for the insured person's contributions to be increased accordingly.

Nor did the new Act infringe the principles of the protection of legitimate expectations (Vertrauensschutz) or of proportionality (Verhältnismäßigkeit). The protection of legitimate expectations did not prevent the legislature from reforming the pension system, especially as the reforms had been carried out following a 1975 Federal Constitutional Court judgment in which the legislature had been required to revise legislation on survivor's pensions, in particular with a view to ensuring equal treatment of women and men.

The Federal Constitutional Court further held that there had been no breach of Article 3 of the Basic Law, which proclaims the principle of equality of treatment. The legislature was free to determine the income that should be taken into account in the calculation of survivor's pensions, the purpose of such pensions being not to replace a wage but to meet the needs of the beneficiary. The receipt of earned income or income replacement could therefore affect the amount of the pension; indeed, that had always been the case with other types of pension. Accordingly, the difference in the treatment of surviving spouses according to whether or not they had their own income was likewise justified. Surviving spouses with an income of their own that exceeded the allowance did not have the same needs as surviving spouses who had worked unpaid at home.

Nor did the Federal Constitutional Court call into question the legislature's decision as to the income to be taken into account. The decision to exclude from the calculation any income from supplementary insurance schemes (Zusatzversicherungen), private schemes (privat-rechtliche Systeme) or other sources such as rent or capital fell within the legislature's margin of appreciation and did not contravene constitutional law.

The same was true of the legislature's decision to apply different rules to old-age pension schemes for civil servants (Beamtenversorgung), in which no form of income was taken into account. The Federal Constitutional Court drew particular attention to the different nature of the schemes for civil servants and for employees: the former was based on the principle of support (amtsangemessene Alimentation), while the latter was based on the principle of coverage by means of the insured person's own contributions and on the principle of social equalisation (sozialer Ausgleich).

In a letter of 24 March 1998 the Federal Constitutional Court sent a copy of its decision of 18 February 1998 to the first applicant and asked her whether she intended to withdraw her constitutional appeal.

On 16 May 1998 the first applicant replied that she did not intend to do so, stating, in particular, that the decision of 18 February 1998 had not dealt with the question whether it was lawful to take earned income or income replacement into account where survivor's pensions were assessed on the basis of voluntary contributions paid by the deceased spouse.

On 10 June 1998 the Federal Constitutional Court, sitting as a panel of three judges, decided not to entertain the first applicant's constitutional appeal. Referring essentially to its decision of 18 February 1998, it held that taking earned income or income replacement into account in the calculation of survivor's pensions did not contravene constitutional law, even in cases where old-age insurance contributions were voluntary.

B.  Relevant domestic law and practice

1.  Before 1 January 1986 the conditions for entitlement to a survivor's pension (Hinterbliebenenrente) were different for men and women. Whereas a widow was entitled to a full pension, a widower was entitled to a pension only if his wife had been the main breadwinner. On 12 March 1975 the Federal Constitutional Court, having regard to changes in the role of women in the family and in working life, decided that the existing legislation on entitlement to survivor's pensions should be amended in order to avoid sex discrimination.

Accordingly, the Survivor's Pension and Child-Raising Periods Act (Hinterbliebenenrenten- und Erziehungszeitengesetz) was passed on 11 July 1985 and came into force on 1 January 1986. The Act removed the distinction between widowers and widows as regards entitlement to survivor's pensions. In addition, section 58(1) of the Act provides that earned income (Erwerbseinkommen) and income replacement (Erwerbs-ersatzeinkommen) are to be taken into account in the calculation of the pension. That is not the case, however, for couples where one of the spouses works unpaid at home.

2.  Section 93(d), paragraph 1, of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) provides, inter alia, that decisions taken in accordance with sections 93(b) and 93(c) are delivered without a public hearing. Section 93(b) of the Act provides, in particular, that a panel of the Federal Constitutional Court may refuse to entertain a constitutional appeal.

COMPLAINTS

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3.  The applicants ... alleged that the Federal Constitutional Court had infringed their right to a fair hearing, guaranteed by Article 6 § 1 of the Convention, in several respects.

Firstly, the proceedings in the Federal Constitutional Court had not been conducted in public.

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THE LAW

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3.  The applicants ... complained that they had not had a fair hearing within the meaning of Article 6 § 1 of the Convention, in particular because the proceedings in the Federal Constitutional Court had not been conducted in public. Article 6 § 1 of the Convention provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”

The applicants asserted that the Federal Constitutional Court should have held a public hearing in order to hear their submissions.

The Court notes at the outset that the second applicant was not a party to the proceedings in the Federal Constitutional Court and that, consequently, he cannot claim to be a victim of the alleged violations of Article 6 § 1 of the Convention.

With regard to the first applicant, the Court notes that section 93(d) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) (see “Relevant domestic law and practice” above) provides that no public hearing is held if a panel of three judges decides not to entertain a constitutional appeal, as in the instant case.

The Court reiterates that the safeguards deriving from the principle of a fair hearing within the meaning of Article 6 § 1 of the Convention also apply to proceedings in constitutional courts (see the following judgments: Ruiz-Mateos v. Spain, 23 June 1993, Series A no. 262, pp. 23-24, §§ 55-60; Süßmann v. Germany, 16 September 1996, Reports of Judgments and Decisions 1996-IV, p.1171, § 39; and Klein v. Germany, no. 33379/96,  
§ 29, 27 July 2000, unreported). It is also true that the outcome of the proceedings in the Federal Constitutional Court was likely to affect the applicants' entitlement to a survivor's pension and undeniably concerned a civil right within the meaning of Article 6 of the Convention (see Pellegrin v. France [GC], no. 28541/95, § 59, ECHR 1999-VIII).

The Court is aware not only of the special nature of constitutional courts (see Süßmann, cited above, p. 1170, § 37), but also of the special nature of constitutional appeals, a means whereby, in Germany, anyone may directly challenge a law within one year of its promulgation, in the absence of an individual measure of implementation. It reiterates, however, that while the public character of court hearings constitutes a fundamental principle (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993, Series A  
no. 263, p. 19, § 58), Article 6 § 1 of the Convention does not guarantee an absolute right to a public hearing, irrespective of the nature of the issues to be determined.

In the instant case the Federal Constitutional Court was the only judicial body competent to deal with the first applicant's complaint. The proceedings in that court were not the “extension” of proceedings instituted in the ordinary courts but concerned an application to have a particular law directly abrogated, in the absence of an individual measure of implementation.

It is also true that, where proceedings are conducted at only one level of jurisdiction, the right to a “public hearing” within the meaning of Article 6 § 1 of the Convention may entail an entitlement to an “oral hearing” (see Fredin v. Sweden (no. 2), judgment of 23 February 1994, Series A no. 283-A, p. 10, § 21). The Court notes, however, that the review undertaken in the instant case related solely to points of law and not to factual issues, unlike the position in Fredin (ibid., p. 11, § 22), in which it held that there had been a violation of Article 6 § 1 of the Convention because the Swedish Supreme Administrative Court's jurisdiction also extended to factual issues.

The Court notes that in the instant case the Federal Constitutional Court's decision not to entertain the first applicant's constitutional appeal referred essentially to the forty-page decision of principle it had given on 18 February 1998, in which it had confirmed the constitutionality of the impugned Act. Having regard to that decision, it considered that it was no longer necessary to hold a public hearing in respect of the first applicant's appeal. It should be reiterated in this connection that the national authorities must also have regard to the demands of efficiency and economy, which would be hampered if hearings were systematically held in proceedings of this kind (see Schuler-Zgraggen, cited above, pp. 19-20, § 58 in fine).

The Court further notes that, as is apparent from the correspondence with the Federal Constitutional Court in the case file, the first applicant did not at any time request a public hearing.

Lastly, the Court observes that the first applicant was able to take cognisance of the opinion of the Ministry of Labour and Social Affairs and to submit observations in reply.

Accordingly, it was not necessary to hold a public hearing in the instant case. There has consequently been no violation of 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention [unanimously].

HESSE-ANGER AND ANGER v. GERMANY DECISION


HESSE-ANGER AND ANGER v. GERMANY DECISION