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SECOND
SECTION
CASE OF RAVIV v. AUSTRIA
(Application
no. 26266/05)
JUDGMENT
STRASBOURG
13
March 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Raviv v. Austria,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Dragoljub Popović,
Isabelle
Berro-Lefèvre,
András Sajó,
Guido
Raimondi,
Paulo Pinto de Albuquerque, judges,
Ewald
Wiederin, ad hoc judge,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26266/05) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian and Israeli national, Ms Martha
Raviv (“the applicant”), on 20 July 2005.
- The
applicant was represented by Ms H. Klaar, a lawyer practising in
Vienna. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry for European and
International Affairs.
- The
applicant alleged, in particular, that she was discriminated against
in that provisions of the Austrian General Social Security Act aimed
at compensating victims of National Socialism failed to take periods
of child-raising abroad into account.
- On
3 September 2007 the President of the First Section decided to
communicate the above complaint to the Government. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 1). The application was later
transferred to the Second Section of the Court, following the
re-composition of the Court’s sections on 1 February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in Vienna in 1936 to Jewish parents. Her father
was arrested in 1939. In 1942 the family learned of his death. In the
same year the applicant’s mother was arrested. In 1943 the
applicant and her mother were deported to the concentration camp in
Bergen-Belsen. They were transferred to the concentration camp in
Vittel in 1944 and were liberated the same year. After having spent
four further years in camps for displaced persons, the applicant and
her mother emigrated to Israel in 1948. The applicant is still living
in Israel, where she resides in Petah-Tikva.
- The
applicant married in 1957. She has three children born in 1961, 1965
and 1971. She worked as a practising lawyer and notary public.
- On
1 March 2002 an amendment to the General Social Security Act
(Allgemeines Sozialversicherungsgesetz) entered into force,
creating additional possibilities of obtaining pension entitlements
for persons who had been prevented from accumulating insurance
periods by their arrest, punishment, detention, unemployment,
denaturalisation or emigration as a result of National Socialist
persecution.
- Subsequently,
the applicant requested the Pension Insurance Office
(Pensionsversicherungsanstalt) to apply these provisions to
her case.
- On
29 October 2002 the Pension Insurance Office issued a declaratory
decision stating that the applicant was entitled to pay insurance
contributions in respect of periods of emigration between 20 January
1951 and 31 December 1965 – a total of 180 insurance months –
pursuant to section 504(2) taken in conjunction with section
502(6) of the General Social Security Act. Moreover, certain periods
of secondary and university education were accepted as substitute
periods (Ersatzzeiten) provided that contributions were paid
in respect of periods of emigration.
- In
a letter of the same day the Pension Insurance Office informed the
applicant that she would have to pay 24.19 euros (EUR) per month,
making a total amount of EUR 4,354.20 for 180 insurance months. By
making this payment by 31 May 2003 at the latest she would be
entitled to a monthly pension of EUR 277.25 plus two additional
payments in the same amount per year, with effect from 1 March 2002.
- The
applicant appealed against the decision of 29 October 2002, arguing,
inter alia, that periods of child-raising should be counted
for the purpose of calculating her pension. Not doing so would
discriminate against her in relation to women who had not been forced
to emigrate and had thus raised their children in Austria.
- On
6 May 2003 the Office of the Vienna Regional Governor (Amt der
Landesregierung) dismissed the applicant’s appeal. It
found that the Pension Insurance Office had correctly applied
sections 502(4) and (6) of the General Social Security Act by
declaring that the applicant was entitled to a maximum of 180
insurance months between January 1951, when she had reached the age
of fifteen, and December 1965. Periods of secondary and university
education abroad in the years 1953 to 1959 were accepted as
substitute periods pursuant to section 502(7) of the General Social
Security Act taken in conjunction with sections 227(1)(1) and
228(1)(3). However, section 500 and the subsequent sections of the
General Social Security Act did not provide for periods of
child-raising within the meaning of section 227a to be counted
as substitute periods.
- The
applicant lodged a complaint with the Constitutional Court
(Verfassungsgerichthof), alleging that section 502 of the
General Social Security Act breached the principle of equality as
guaranteed by Article 7 § 1 of the Federal Constitution.
She argued in particular that excluding periods of child-raising on
the ground that they were spent abroad ran counter to the underlying
intention of the rules concerning preferential treatment of persons
who had suffered disadvantages in their social security status during
the National Socialist era. These rules were aimed at eliminating the
financial disadvantages suffered by victims of National Socialism
under social security law.
- On
23 September 2003 the Constitutional Court refused to deal with the
applicant’s complaint for lack of prospects of success. It
observed that in an area such as the present one, concerning special
provisions giving preferential treatment to a particular group of
persons under social security law, the legislature had a wide margin
of appreciation in assessing whether events which occurred abroad
were to be treated on an equal footing with events that occurred in
Austria.
- Following
a request by the applicant the Constitutional Court referred the case
to the Administrative Court (Verwaltungsgerichtshof). Before
that court the applicant repeated in essence the arguments she had
raised before the Constitutional Court. She asserted in particular
that, having regard to the aim pursued by section 502 of the General
Social Security Act and the fact that periods of secondary and
university education abroad were accepted as substitute periods, the
lack of a provision including periods of child-raising abroad as
substitute periods could only be regarded as an omission. The
authorities should have closed this unintended gap in the law by
accepting periods of child-raising abroad as substitute periods.
- On
22 December 2004 the Administrative Court dismissed the applicant’s
complaint as being unfounded. It noted that section 500 of the
General Social Security Act and its subsequent sections were aimed at
eliminating disadvantages in accumulating insurance periods which
victims of National Socialism had suffered on account of their
persecution or emigration. The law did not require there to be an
actual causal link between persecution and the loss of insurance
periods. It proceeded from the assumption that without the
persecution, insurance periods would have been accumulated, and
provided for overall crediting (pauschalierte Anrechnung) of
contribution periods or substitute periods to compensate for periods
of persecution or emigration.
The
Administrative Court went on to hold:
“In such a system, a teleological gap cannot in
principle result from the fact that the legislature has not extended
the crediting of periods of child-raising in Austria under section
227a of the General Social Security Act to persons who, for reasons
linked to persecution within the meaning of section 500, live abroad
during periods of child-raising. Section 227a has a similar
(substitute) function in that it likewise provides for the crediting
for insurance purposes of periods during which the person concerned
was prevented from accumulating insurance periods (in this instance,
on account of child-raising). In so far as the legislature already
compensates for the loss of insurance periods as a result of
persecution, no further compensation is needed. In so far as it does
not make such provision, there is no difference in relation to other
persons who are resident abroad: on account of the territoriality
principle applicable under the social security scheme, the crediting
of insurance periods in accordance with section 227a of the General
Social Security Act would in any event require an equalisation
arrangement through an international agreement and, moreover,
decisions in such matters would be taken not in administrative
proceedings but in proceedings concerning benefit entitlements.
Section 502(7) of the General Social Security Act does
not alter this finding in any way. This provision has two aims: it
ensures that periods of schooling that were interrupted as a result
of persecution are regarded as completed (thus constituting a
situation giving rise to preferential treatment under section
502(4)), and it places school and university attendance abroad and in
Austria on an equal footing. This equal treatment is admittedly of
significance for benefit entitlement (and not only for the
application of preferential treatment on the basis of emigration).
However, as such it falls within the discretion enjoyed by the
legislature in matters of legal policy. No further inferences are to
be drawn from this in terms of the principle of equality, especially
not in the manner argued by the complainant.”
Finally,
the Administrative Court noted that the applicant’s complaint
failed to give more detailed reasons as to why accepting periods of
child-raising abroad as substitute periods was objectively required.
- The
judgment was served on the applicant’s counsel on 20 January
2005.
II. RELEVANT DOMESTIC LAW
A. The General Social Security Act – general
rules
- The
General Social Security Act (Allgemeines
Sozialversicherungs-gesetz) regulates health and accident
insurance and old-age pension insurance for persons employed in
Austria, based on the contributory principle.
- Section
4 of the General Social Security Act regulates compulsory affiliation
to the social security system. Pursuant to section 4(1)(1), employees
are affiliated to the health and accident insurance scheme and to the
old-age pension scheme. Section 4(2) defines an employee as any
person working in consideration of remuneration in a relationship of
personal and economic dependency. For an employee affiliated to the
social security system, compulsory contributions have to be paid in
part by the employer and in part by the employee.
- Entitlement
to an old-age pension arises when a person who has reached
pensionable age has accumulated a sufficient number of insurance
months, the required minimum being 180 months.
- When
calculating the number of insurance months, certain periods during
which no gainful activity has been pursued, and thus no contributions
have been made, are nevertheless taken into account as substitute
periods, for instance periods of secondary or university education,
child-raising, unemployment, or military or alternative service.
- The
relevant rules on substitute periods are laid down in sections 227,
227a and 228 of the General Social Security Act. The following
provisions are relevant in the context of the present case.
Section
227(1)(1) and section 228(1)(3) regulate in detail which periods of
secondary education and university education in Austria are to be
credited as substitute periods.
Section
227a of the General Social Security Act provides that periods which
the insured person has spent exclusively or mainly raising his or her
child are to be counted as substitute periods up to a maximum of
forty-eight months, starting with the birth of each child, if the
period of child-raising was spent in Austria.
B. Preferential treatment of persons who suffered
disadvantages in their social security status in the National
Socialist era
- Section
500 of the General Social Security Act provides that persons who,
between 4 March 1933 and 9 May 1945, suffered a disadvantage in their
social security status for political reasons – except in
connection with National Socialist activities – or on account
of their religion or race are to receive preferential treatment.
- The
details regarding this preferential treatment are regulated in the
subsequent sections and differ according to whether the person
emigrated or not. The relevant provisions were enacted in 1968 and
have subsequently been amended several times.
- Section
502(4) provides that persons who emigrated during the above-mentioned
period and had accumulated insurance periods or substitute periods
prior to that time are entitled to pay retroactive contributions (of
approximately EUR 25 per month) for periods of emigration up to 31
March 1959.
- Pursuant
to section 502(6), in the version in force since 1 March 2002,
persons who emigrated but had, for reasons beyond their control, not
accumulated any insurance periods or substitute periods before their
emigration are also entitled to pay retroactive contributions if they
were born on or before 12 March 1938 and were resident in Austria on
that date. Retroactive contributions can be made with effect from the
person’s fifteenth birthday at the earliest. A further
provision (section 592(2)) limits the possibility of making
retroactive contributions to 180 insurance months.
- Pursuant
to section 502(7), periods of secondary education or university
education abroad between 4 March 1933 and 31 March 1959 are to be
dealt with in the same way as periods falling under sections
227(1)(1) and 228(1)(3). In essence, that means that such periods are
to be counted as substitute periods, in the same way as periods of
secondary education or university education spent in Austria.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the relevant provisions of the General
Social Security Act, which did not treat periods of child-raising
spent abroad on the same footing as such periods spent in Austria,
discriminated against her. She relied on Article 14 of the Convention
in conjunction with Article 1 Protocol No. 1.
Article
14 provides:
“The enjoyment of the rights and freedoms set
forth in [the] 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.”
Article
1 of Protocol No. 1 provides:
“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.”
- Firstly,
the applicant claimed to have been discriminated against on account
of her residence abroad. Secondly, she alleged that the distinction
contained inherent gender discrimination, since mainly women were
affected by it. Thirdly, she claimed to have been discriminated
against as periods of unemployment were counted as insurance periods
irrespective of whether they were spent in Austria or abroad, whereas
periods of child-raising were counted as substitute periods only if
they were spent in Austria.
- The
Government contested that argument.
A. Admissibility
- The
Government asserted that the applicant had failed to exhaust domestic
remedies as required by Article 35 § 1 of the Convention. In the
Government’s view, the applicant had only claimed a violation
of the principle of equality (Gleichheitsgrundsatz) under
Article 7 § 1 of the Federal Constitution, but had neither
explicitly nor in substance relied on her right of property in her
complaints lodged with the Constitutional Court and the
Administrative Court. Noting that the applicant had been represented
by counsel throughout the domestic proceedings, the Government argued
that she could have been expected to raise her complaint concerning
her right of property with the domestic authorities, in addition to
her allegation of discrimination. In conclusion, the Government
claimed that the applicant had not duly exhausted domestic remedies
in respect of her complaint under Article 1 of Protocol No. 1 taken
in conjunction with Article 14 of the Convention.
- The
applicant contested the Government’s view, stating that it was
sufficient to raise the alleged violations in substance, which she
had done in the domestic proceedings. In contrast, it was not
necessary to refer explicitly to the relevant Convention Articles
before the domestic authorities. The applicant asserted that the
principle of equality under Article 7 § 1 of the Federal
Constitution corresponded to Article 14 of the Convention but was
wider in scope as it was not accessory in nature.
- The
Court reiterates that Article 35 § 1 of the Convention requires
that the complaints intended to be made subsequently in Strasbourg
should have been made to the appropriate domestic body, at least in
substance and in compliance with the formal requirements and
time-limits laid down in domestic law (see Cardot v. France,
19 March 1991, § 34, Series A no. 200, and Akdivar and Others
v. Turkey, 16 September 1996, § 66, Reports of Judgments
and Decisions 1996 IV). However, that provision should be
applied with a certain degree of flexibility and without excessive
regard for matters of form (see Cardot, cited above, §
34, and Akdivar and Others, cited above, § 69).
- The
Court notes that, in the domestic proceedings, the applicant
complained of discrimination in relation to her pension claims on the
ground that periods of child-raising spent abroad were not treated as
substitute periods in the same way as child-raising periods spent in
Austria. Such consideration of substitute periods has inherent and
direct effects on the applicant’s pension claim, and thus on a
financial claim. The Court therefore finds that the applicant has
raised her complaint under Article 14 of the Convention taken in
conjunction with Article 1 of Protocol No. 1 in substance before the
domestic authorities and courts, thus affording the State the
opportunity of putting right the violations alleged against it (see
Akdivar and Others, cited above, § 65).
- The
Court therefore concludes that in so far as the applicant complains
that periods of child-raising spent abroad were not taken into
account as substitute periods for the calculation of her pension
claim, her complaint cannot be rejected for failure to exhaust
domestic remedies.
- The
Court considers that this complaint is also not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
- However,
the Court notes that in the domestic proceedings the applicant did
not raise, either explicitly or in substance, her complaints of
indirect gender discrimination and of discrimination in relation to
periods of unemployment spent abroad, which are treated as substitute
periods for the calculation of a pension claim. She only raised those
complaints in her application before the Court.
- It
follows that these complaints must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion of
domestic remedies.
B. Merits
1. The parties’ submissions
- The
applicant claimed that the relevant provisions of the General Social
Security Act discriminated against her on account of the fact that
they did not treat periods of child-raising spent abroad on the same
footing as such periods spent in Austria. She maintained that the
purpose of section 500 and the subsequent sections of the General
Social Security Act was to compensate victims of National Socialism
for disadvantages suffered under social security law. However, the
law failed to achieve that aim in that it treated periods of
child-raising spent abroad as a result of forced emigration
differently from periods of child-raising spent in Austria. There
were no public policy reasons justifying this difference.
- In
so far as the Government referred to the principle of territoriality
underlying social security law, the applicant argued that section 502
of the General Social Security Act already made exceptions to that
principle in the context of preferential treatment of victims of
National Socialism. There were no reasons not to apply the same
approach to periods of child-raising spent abroad.
- The
Government contested the applicant’s view. They noted that
section 500 and subsequent sections of the General Social Security
Act pursued the aim of providing preferential treatment for victims
of National Socialist persecution by allowing them to buy
contribution periods at preferential rates in order to become
entitled to an old-age pension under the Austrian social security
system. This possibility was only open to victims of National
Socialism and persons benefiting from these provisions were thus in a
different situation from other contributors.
- Referring
to the reasons set out in the Administrative Court’s judgment
of 22 December 2004, they argued that section 500 and subsequent
sections of the General Social Security Act provided for overall
crediting of contribution periods or substitute periods in order to
eliminate disadvantages suffered as a result of National Socialist
persecution, including periods of emigration. In such a system the
legislature was not obliged to provide for crediting of periods of
child-raising spent abroad. On the contrary, the exclusion of such
crediting served to prevent a situation where the same period was
taken into account twice. If the law treated periods of secondary
education and university education spent abroad as substitute
periods, this fell within a member State’s margin of
appreciation in matters of social policy.
- Moreover,
the Government asserted that the principle of territoriality was
inherent in all matters of social security policy and law. The
statutory old-age pension scheme under the General Social Security
Act was in principle confined to the federal territory, providing for
compulsory insurance of persons employed in Austria or by companies
with their head office in Austria. Consequently, periods of
child-raising led to the crediting of substitute periods only if the
child was raised in Austria. Exceptions were only made under
Community law, which was not relevant in the present context, and on
the basis of bilateral agreements. There was no bilateral agreement
with Israel in that respect. Finally, it had to be borne in mind that
the crediting of substitute periods for child-raising under social
security law was also a matter of family policy. This was underlined
by the fact that substitute periods for child-raising were as a rule
credited to the parent receiving parental leave allowance. In sum, it
was justified to limit the crediting of substitute periods to cases
in which the child was being raised in Austria.
- In
conclusion, the Government asserted that the legislature had not
transgressed the margin of appreciation when – in setting up a
system of preferential treatment in social security law for victims
of National Socialist persecution – it had decided not to grant
additional crediting for periods of child-raising abroad.
Consequently, the fact that in the applicant’s case such
periods were not counted as substitute periods did not disclose any
appearance of a violation of Article 14 of the Convention taken in
conjunction with Article 1 of Protocol No. 1.
2. The Court’s assessment
(a) General principles
- The
Court notes that it has not been disputed in the present case that
Article 14 of the Convention, taken in conjunction with Article 1 of
Protocol No. 1, applies. The Court reiterates that although Article 1
of Protocol No. 1 does not include the right to receive a social
security payment of any kind, if a State does decide to create a
benefits scheme, it must do so in a manner which is compatible with
Article 14 (see Stec and Others v. the United Kingdom (dec.)
[GC], nos. 65731/01 and 65900/01, § 55, ECHR 2005 X;
Andrejeva v. Latvia [GC], no. 55707/00, §79, ECHR
2009 ...; Carson and Others v. the United Kingdom [GC],
no. 42184/05, § 64, ECHR 2010 ...and Stummer v.
Austria [GC], no. 37452/02, § 83, 7 July
2011). Having regard to its case-law, the Court sees no reason
to reach a different conclusion in the present case.
- The
Court has established in its case-law that only differences in
treatment based on an identifiable characteristic, or “status”,
are capable of amounting to discrimination within the meaning of
Article 14 (see Carson and Others, cited above, § 61; and
Stummer, cited above, § 87).
- Moreover,
in order for an issue to arise under Article 14 there must be a
difference in the treatment of persons in analogous or relevantly
similar situations. Such a difference of treatment is discriminatory
if it has no objective and reasonable justification, in other words
if it does not pursue a legitimate aim or if there is no reasonable
relationship of proportionality between the means employed and the
aim sought to be realised (see Stec and Others v. the United
Kingdom [GC], no. 65731/01, § 51, ECHR 2006 VI;
Andrejeva, cited above, § 81; Carson and Others,
cited above, § 61; and Stummer, cited above, §
87).
- The
Contracting State enjoys a margin of appreciation in assessing
whether and to what extent differences in otherwise similar
situations justify a different treatment. The scope of this margin
will vary according to the circumstances, the subject matter and the
background. As a general rule, very weighty reasons would have to be
put forward before the Court could regard a difference in treatment
based exclusively on the ground of sex as compatible with the
Convention. On the other hand, a wide margin is usually allowed to
the State under the Convention when it comes to general measures of
economic or social strategy. Because of their direct knowledge of
their society and its needs, the national authorities are in
principle better placed than the international judge to appreciate
what is in the public interest on social and economic grounds, and
the Court will generally respect the legislature’s policy
choice unless it is “manifestly without reasonable foundation”
(see Stec and Others, cited above, §§ 51-52,
with further references; see also Andrejeva, cited above, §
82-83; Carson and Others, cited above, § 61; and Stummer,
cited above, § 88).
(b) Application of these principles to the
present case
- In
the present case, the applicant’s claim is that she was
discriminated against as periods of child-raising abroad were not
treated on an equal footing with periods of child-raising spent in
Austria. The Court has already held that “place of residence”
constitutes an aspect of personal status for the purposes of Article
14 (see Carson and Others, cited above, §§ 70-71).
- The
Court notes at the outset that section 500 and subsequent sections of
the General Social Security Act created a special regime for victims
of National Socialist persecution. These provisions are aimed at
eliminating disadvantages in social security law suffered by this
group through overall crediting of insurance periods. As a general
rule, affiliation to the social security system, including the
old-age pension system, is linked to employment in Austria and is
based on the compulsory payment of contributions.
- In
contrast, under the special regime referred to above, victims of
National Socialist persecution who either did not complete a full
career of insurance contributions in Austria or who, like the
applicant, did not accumulate any insurance months in Austria owing
to their age at the time of their emigration may become eligible for
an old-age pension by paying retroactive contributions on a voluntary
basis. Moreover, these contributions can be made at preferential
rates determined by Section 502 (4) of the General Social Security
Act, which amounted to approximately EUR 25 per month at the time
when the applicant made use of this possibility.
- The
Court notes that the special regime for victims of National Socialist
persecution makes exceptions from the basic principles of Austrian
social security law and applies a distinct set of rules to them.
Having regard in particular to the possibility of accumulating
insurance months without being employed in Austria, the voluntary
nature of the insurance and the application of preferential rates,
the Court considers that persons like the applicant who are covered
by the special regime are not in a relevantly similar situation to
persons who have made regular contributions to the old-age pension
system on the basis of their employment in Austria. Consequently, no
issue of discrimination under Article 14 taken in conjunction with
Article 1 of Protocol No. 1 arises on account of the fact that
periods of child-care spent abroad are not counted as substitute
periods.
- However,
the applicant also appears to be complaining that within the group of
persons benefiting from the special regime described above, she was
discriminated against. In so far as she complains that the failure to
credit periods of child-raising abroad as substitute periods amounts
to inherent gender discrimination, the Court has already noted above
that the applicant did not raise this argument in the domestic
proceedings, and has rejected this part of the complaint for
non-exhaustion of domestic remedies. The same applies to the
comparison with periods of unemployment, which the applicant did not
raise in the domestic proceedings either (see paragraphs 37-38
above).
- What
remains to be examined is the applicant’s argument, which she
did raise before the Administrative Court, that in addition to the
overall crediting of insurance periods by way of paying preferential
contributions retroactively, periods of higher education are taken
into account as substitute periods if they have occurred abroad,
while periods of child-raising are not. The Government asserted that
in the area of social policy, the legislature had to decide whether
or not the crediting of substitute periods within the special regime
was reconcilable with other policy aims, such as for instance family
policy in respect of crediting of child-raising periods abroad. In
contrast, the applicant appears to argue that, within the special
regime, the legislature is obliged to treat all sets of facts which
are capable of being credited as substitute periods under Austrian
social security law on the same footing.
- The
Court disagrees with that view. It observes that here the comparison
is between persons falling under the special regime for victims of
National-Socialist persecution who cannot obtain crediting for
child-raising periods abroad, and persons falling under the special
regime and who can obtain crediting for periods of higher education
abroad. The Court does not find that there is a difference of
treatment between those two groups based on an aspect of personal
status as required by Article 14.
- Indeed,
the applicant herself, while she could not obtain crediting for
periods of child-raising abroad, obtained crediting of periods of
higher education spent abroad between 1953 and 1959 as substitute
periods. In essence, the applicant is complaining that the law
requires different conditions for the crediting of different types of
substitute periods in respect of the same group of people, which in
itself does not disclose any element of discrimination.
- In
conclusion, the Court finds that compared to persons who have made
regular contributions to the old-age pension system the applicant,
who is covered by the special regime for victims of National
Socialist persecution, is not in a relevantly similar situation.
Within the group of persons covered by the special regime the Court
finds that there is no difference of treatment based on any element
of personal status.
- Consequently,
there has been no violation of Article 14 taken in conjunction with
Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 1 of Protocol No. 1 taken alone
that the Austrian courts’ refusal to count periods of
child-raising spent abroad as substitute periods violated her right
to peaceful enjoyment of property. She appears to be arguing that,
had the periods in question been counted as substitute periods, she
would have received a higher pension.
- The
Court notes that the Government have also raised an objection of
failure to exhaust domestic remedies in respect of the complaint
under Article 1 of Protocol No. 1 alone. However, the Court is not
called upon to determine this issue as the complaint is in any case
inadmissible for the following reasons.
- According to the Court’s established case-law,
Article 1 of Protocol No. 1 does not guarantee the right to acquire
possessions or to receive a social security benefit or pension
payment of any kind or amount, unless provided for by national law
(see mutatis mutandis, Stec and Others (dec.), cited
above, § 55, and Carson and Others, cited above,
§§ 53 and 57). In the present case, national law does not
provide for counting child-raising periods abroad as substitute
periods. Consequently, no entitlement to a higher pension can follow
from having spent periods of child-raising outside Austria.
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 (a) and must be rejected in accordance with
Article 35 § 4.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1 admissible in so far as the applicant complains
that periods of child-raising spent abroad were not taken into
account as substitute periods for the calculation of her pension
claim, and the remainder of the application inadmissible;
- Holds by four votes to three that there has been
no violation of Article 14 of the Convention taken in conjunction
with Article 1 of Protocol No. 1.
Done in English, and notified in writing on 13 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Popović, Sajó
and Pinto de Albuquerque is annexed to this judgment.
F.T.
F.E.P.
JOINT DISSENTING OPINION OF JUDGES POPOVIĆ, SAJÓ
AND PINTO DE ALBUQUERQUE
-
The present case concerns a claim of discrimination based on the fact
that periods of child-raising abroad were not treated on an equal
footing with periods of child-raising spent in Austria for the
purpose of counting substitute insurance periods. The Court has
already held that “place of residence” constitutes an
aspect of personal status for the purposes of Article 14 (see Carson
and Others v. the United Kingdom [GC], no. 42184/05, §§
70-71, ECHR 2010). We find that the claim is founded since the
applicant was subjected to discriminatory treatment based precisely
on her residence abroad. Thus, our disagreement with the majority is
strictly based on a question of legal principle, the factual
situation of the applicant being undisputed. And the question of
principle in this case is the following: should social security and
family policy privilege Austrian mothers who raise their children in
Austria over Austrian mothers who raise them abroad? Contrary to the
majority’s positive answer, our reply is an unequivocal “no”.
- As
a general rule, affiliation to the social security system, including
the old-age pension system, is linked to employment in Austria and is
based on the compulsory payment of contributions. Section 500 and
subsequent sections of the General Social Security Act created a
special regime for victims of National Socialist persecution, the aim
being to compensate victims of such persecution through overall
crediting of insurance periods for disadvantages suffered under
social security law as a result of persecution or emigration. Under
this special regime, victims of National Socialist persecution who
either did not complete a full career of insurance contributions in
Austria or who, like the applicant, did not accumulate any insurance
months in Austria owing to their age at the time of their emigration
may become eligible for an old-age pension by paying retroactive
contributions at preferential rates on a voluntary basis. The problem
lies in the fact that periods of child-raising in Austria are counted
as substitute periods pursuant to section 227a of the General Social
Security Act, which is not the case for periods of child-raising
spent abroad.
-
The Administrative Court in its judgment of 22 December 2004 noted
that section 500 and the subsequent sections of the General Social
Security Act achieved the aim of eliminating disadvantages in social
security status suffered by victims of National Socialist persecution
by way of overall crediting of insurance periods. This was based on
the assumption that insurance periods would have been accumulated if
there had been no persecution. In such a system, further compensation
for specific periods, such as periods of child-raising, was not
required. It was within the legislature’s margin of
appreciation to decide whether and, if so, which substitute periods
would be credited in respect of facts which occurred abroad.
In
their observations the Government relied on the same reasons, but
added two further arguments. First, they stated that within the
special regime for victims of National Socialist persecution, the
crediting of periods of child-raising abroad in addition to the
overall crediting of insurance periods might amount to counting the
same periods twice. Second, they argued that the crediting of
substitute periods for child-raising was not only a matter of social
security law but also of family policy. Both the territoriality
principle inherent in social security law and the legitimate
interests of family policy provided objective reasons for counting
periods of child-raising as substitute periods only if they had been
spent in Austria.
- We
are not convinced by the Government’s first argument. We note
in particular that the argument that accepting periods of
child-raising abroad as substitute periods in addition to the overall
crediting of insurance periods provided for by the special regime may
lead to counting the same period twice would also apply to periods of
higher education spent abroad. Indeed, the applicant herself obtained
the entitlement to overall crediting of 180 insurance months in
respect of the years 1951 to 1965 by paying retroactive
contributions. In addition, periods of higher education in the years
1953 to 1959 were counted as substitute periods. If the argument of
“double” crediting of insurance periods does not count
for periods of higher education spent abroad, there is no sense in
allowing it to count with regard to periods of child-raising abroad.
- We
are not convinced by the Government’s second argument either,
which relies essentially on the principle of territoriality inherent
in social security law, for the simple reason that the regime for
victims of National Socialist persecution itself creates a special
situation with regard to the territoriality principle. The
argument of territoriality is clearly misplaced in the context of a
law which aims precisely to compensate victims of persecution in
their own country who had to leave the country to survive. In
this connection, it should be noted that the applicant was deported,
first, to the concentration camp in Bergen-Belsen at the age of
seven, and subsequently to the concentration camp in Vittel, spent
four years in camps for displaced persons and emigrated to Israel at
the age of twelve. She never accumulated any insurance periods in
Austria under the ordinary regime. In the context of the special
legal regime described above, any considerations linked to the
principle of territoriality, including considerations of family
policy based on that principle, cannot provide a justification for
distinguishing between facts that occurred in Austria and facts that
occurred abroad. We find it very disturbing, to say the least, that
family policy should privilege Austrian mothers who raise their
children in Austria over Austrian mothers who do so abroad. The
presumption of “less valuable” child-raising by Austrian
mothers living abroad is totally unacceptable.
-
Finally, the Administrative Court’s argument does not stand
either. Given the aim of the special regime of eliminating
disadvantages for victims of National Socialist persecution, we
cannot see any reasonable and objective grounds for excluding one
particular type of period, namely time spent child-raising, on the
sole ground of residence abroad, taking into account in particular
the fact that the applicant’s residence abroad was precisely
because of her status as a victim of persecution.
We
attach significant weight to the fact that the applicant was
persecuted in her own country and was forced to emigrate.
Consequently, it cannot be said that she chose to live abroad (in
contrast to the position in Carson and Others, cited above, §
86). On the contrary, the fact that she is resident abroad is linked
to the persecution she suffered during the period of National
Socialism. We find that the applicant was placed against her will in
a different situation from persons who have paid regular
contributions to the old-age pension system on the basis of their
employment in Austria. In other words, she was forcibly excluded from
a career of regular contributions, such exclusion being the result of
a grave human rights violation. The contested legal solution
perpetuates the pattern of exclusion to which the legislature wanted
to put an end. By not counting periods of child-raising spent abroad
as substitute periods, the respondent State has treated the applicant
differently on the basis of a situation that she was forced to accept
as a result of that grave human rights violation. The applicant’s
actual situation reinforces that pattern of exclusion: years of
childcare for children born in the context of such exclusion are
treated as years of childcare provided by a non-Austrian mother.
- We
accept that the Convention does not restrict the Contracting States’
freedom to decide whether or not to have special social security
regimes for victims of persecution. If, however, a State does decide
to create a special scheme, as Austria did when it approved the 2002
amendment to the General Social Security Act, it must do so in a
manner which is compatible with Article 14 of the Convention (see
Stec and Others v. the United Kingdom [GC], nos. 65731/01 and
65900/01, § 53, ECHR 2006 VI). This State obligation is
even more compelling in the present case, where the special regime in
question aims to repair the harm done to people who suffered
persecution. For the reasons set out above, we consider that the
exclusion of periods of child-raising by Austrian mothers abroad not
only contradicted the generous aim of the 2002 amendment but, more
seriously, infringed the European standard of equality. Consequently,
we consider that there has been a violation of Article 14 taken in
conjunction with Article 1 of Protocol No. 1.
