Communication No. 415/1990
Submitted by: Dietmar Pauger
Date of communication: 5 June 1990
Alleged victim: The author
State party: Austria
Date of adoption of Views: 26 March 1992 (forty-fourth session)
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.
Subject matter: Discrimination in the allocation
of pension benefits
Procedural issue: State party to the Optional
Protocol
Substantive issues: Discrimination on the ground
of sex—Equality before the law—Objective
and reasonable justification
Articles of the Covenant: 3, 14(1) and 26
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”.
Article of the Optional Protocol: 1
Rules of procedure: Rule 94(3)
Individual opinion:
Mr. Nisuke Ando
Dissenting
opinion
by
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.
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.
The facts as submitted by the author
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).
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
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