CCPR/C/44/D/415/1990

Dietmar Pauger v. Austria, Communication No. 415/1990, U.N. Doc.

CCPR/C/44/D/415/1990 at 122 (1992).

Communication No. 415/1990 : Austria. 30/03/92.

CCPR/C/44/D/415/1990. (Jurisprudence)

Convention Abbreviation: CCPR

Human Rights Committee

Forty-Fourth session

VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5,

PARAGRAPH 4

OF THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT

ON CIVIL AND POLITICAL RIGHTS -FORTY-FOURTH SESSION

concerning

Communication No. 415/1990

Submitted by: Dietmar Pauger

Alleged victim: The author

State party: Austria

Date of communication: 5 June 1990

Date of decision on admissibility: 22 March 1991

The Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 26 March 1992,

Having concluded its consideration of communication No. 415/1990, submitted to the

Human Rights Committee by Mr. Dietmar Pauger under the Optional Protocol to the

International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of

the communication and by the State party,

Adopts its Views under article 5, paragraph 4, of the Optional Protocol

The facts as submitted by the author

1. The author of the communication is Dietmar Pauger, an Austrian citizen born in

1941 and a resident of Graz, Austria. He claims to be a victim of a violation by

Austria of article 26 of the International Covenant on Civil and Political Rights. The

Optional Protocol entered into force with respect to Austria on 10 March 1988.

2.1 The author works as a university professor. His wife died on 23 June 1984. She

had been a civil servant and employed as a teacher in a public school in the province

of Styria (Land Steiermark). On 24 August 1984, the author submitted a pension

claim pursuant to the Pension Act of 1965 (Pensionsgesetz 1965). He notes that the

Pension Act granted preferential treatment to widows, as they would receive a

pension, regardless of their income, whereas widowers could receive pensions only if

they did not have any other form of income. Since the author was gainfully employed,

the provincial government of Styria (Steiermärkische Landesregierung) rejected his

claim, which was similarly dismissed on appeal by the Constitutional Court of Austria

(Verfassungsgerichtshof).

2.2 Subsequently, the eighth amendment to the Pension Act (8.

Pensionsgesetznovelle) of 22 October 1985 introduced a general widower pension,

applicable retroactively from 1 March 1985. However, a three-phase pension scheme

was set up, providing reduced benefits in the first two stages: one third of the pension

as of 1 March 1985, two thirds as of 1 January 1989, the full pension as of 1 January

1995.

2.3 On 13 May 1985 the author again applied for a widower's pension, which was

granted at the reduced (one-third)level provided for in the eighth amendment.

However, according to a particular provision of this amendment, applicable only to

civil servants, the pension initially was not paid to the author but placed "in trust".

2.4 The author subsequently appealed to the Constitutional Court, requesting

(a)payment of the full pension; and (b)the annulment of the provision stipulating that

pensions of civil servants are "kept in trust" (Ruhensbestimmung). By decision of 16

March 1988, the Constitutional Court held the Ruhensbestimmung to be

unconstitutional, but did not settle the question of the constitutionality of the three

phases of pension benefits for widowers. After yet another appeal, the Constitutional

Court dismissed, on 3 October 1989, the author's request for a full pension and the

annulment of the three phases of implementation.

Complaint

3. The author claims to be a victim of a violation of article 26 of the Covenant,

because, whereas a widow would have received a full pension under similar

circumstances, he, as a widower, received no pension at all from 24 June 1984 to 28

February 1985, and has received only a partial pension since then. In particular, he

contends that the inequality in pension benefits resulting from the three phases of

implementation of the eighth amendment to the Pension Act constitutes

discrimination, since the differentiation between widows and widowers is arbitrary

and cannot be said to be based on reasonable and objective criteria.

Committee's admissibility decision

4. At its forty-first session, the Committee considered the admissibility of the

communication, noting that the State party had not raised any objections to

admissibility. On 22 March 1991, the Committee declared the communication

admissible in respect of article 26 of the Covenant.

The State party's explanations and the author's comments thereon

5.1 In its submission, dated 8 October 1991, the State party argues that the former

Austrian pension legislation was based on the fact that in the overwhelming majority

of cases only the husband was gainfully employed, and therefore only he was able to

acquire an entitlement to a pension from which his wife might benefit. It submits that,

in response to changed social conditions, it amended both family legislation and the

Pension Act; equality of the husband's position under pension law is to be

accomplished in a number of successive stages, the last of which will be completed on

1 January 1995.

5.2 The State party further submits that new legislation, designed to change old social

traditions, cannot be translated into reality from one day to the other. It states that the

gradual change in the legal position of men with regard to their pension benefits was

necessary in the light of the actual social conditions, and hence does not entail any

discrimination. In this context, the State party points out that the equal treatment of

men and women for purposes of civil service pensions has financial repercussions in

other areas, as the pensions will have to be financed by the civil servants, from whom

pension contributions are levied.

6.1 In his reply to the State party's submission, the author argues that pursuant to

amendments in family law, equal rights and duties have existed for both spouses since

1 January 1976, in particular with regard to their income and their mutual

maintenance. He further submits that in the public sector men and women receive

equal payment for equal services and have also to pay equal pension fund

contributions. The author states that there is no convincing reason as to why a period

of nearly two decades since the emancipation of men and women in family law should

be necessary for the legal emancipation in pension law to take place.

6.2 According to the author, neither the financial burden on the State's budget, nor the

fact that many men are entitled to pensions of their own, can be used as arguments

against the obligation to treat men and women equally, pursuant to article 26 of the

Covenant. The author points out that the legislator could have established other, such

as income-related, criteria to distinguish between those who are entitled to a full

pension and those who are not. He further submits that the financial burden caused by

the equal treatment of men and women under the Pension Act would be comparatively

low, because of the small number of widowers who are entitled to such a pension.

Examination of the merits

7.1 The Human Rights Committee has considered the present communication in the

light of all the information made available to it by the parties, as provided in article 5,

paragraph 1, of the Optional Protocol.

7.2 The Committee has already had the opportunity to express the view that article 26

of the Covenant is applicable also to social security legislation. It reiterates that article

26 does not of itself contain any obligation with regard to the matters that may be

provided for by legislation. Thus it does not, for example, require any State to enact

pension legislation. However, when it is adopted, then such legislation must comply

with article 26 of the Covenant.

7.3 The Committee reiterates its constant jurisprudence that the right to equality

before the law and to the equal protection of the law without any discrimination does

not make all differences of treatment discriminatory. A differentiation based on

reasonable and objective criteria does not amount to prohibited discrimination within

the meaning of article 26.

7.4 In determining whether the Austrian Pension Act, as applied to the author,

entailed a differentiation based on unreasonable or unobjective criteria, the Committee

notes that the Austrian family law imposes equal rights and duties on both spouses,

with regard to their income and mutual maintenance. The Pension Act, as amended on

22 October 1985, however, provides for full pension benefits to widowers only if they

have no other source of income; the income requirement does not apply to widows. In

the context of said Act, widowers will only be entitled to full pension benefits on

equal footing with widows as of 1 January 1995. This in fact means that men and

women, whose social circumstances are similar, are being treated differently, merely

on the basis of sex. Such a differentiation is not reasonable, as is implicitly

acknowledged by the State party when it points out that the ultimate goal of the

legislation is to achieve full equality between men and women in 1995.

8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional

Protocol, is of the view that the application of the Austrian Pension Act in respect of

the author after 10 March 1988, the date of entry into force of the Optional Protocol

for Austria, made him a victim of a violation of article 26 of the International

Covenant on Civil and Political Rights, because he, as a widower, was denied full

pension benefits on equal footing with widows.

9. The Committee notes with appreciation that the State party has taken steps to

remove the discriminatory provisions of the Pension Act as of 1995. Notwithstanding

these steps, the Committee is of the view that the State party should offer Mr. Dietmar

Pauger an appropriate remedy.

10. The Committee wishes to receive information, within 90 days, on any relevant

measures taken by the State party in respect of the Committee's views.