LYSZCZYNA v. GERMANY
Inadmissible
Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova
The applicant, Mr Wladislaw Lyszczyna, is a German national who was born in 1945 and lives in Düsseldorf. The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. Until his emigration to Germany in February 1984 the applicant lived and worked in Katowice (Poland). When applying for benefits in Germany the applicant made differing statements as to his employment or working record in Poland. In an application to the Federal Insurance Fund for Miners (Bundesknappschaft – hereinafter called “Federal Insurance Fund”) the applicant submitted that he had been self-employed prior to leaving Poland. Yet in an application for unemployment benefits to the Federal Labour Office the applicant submitted that he had been employed at the material time. In Germany the applicant collected unemployment benefits and temporary allowances (Übergangsgeld). On 3 October 1984 and 21 December 1992 he had a heart attack. On 11 April 1995 the applicant applied for an invalidity pension to the Federal Insurance Fund submitting that he had been self-employed in Poland until 31 January 1984 and had made contributions to the Polish pension scheme during that time. On 26 September 1995 the Federal Insurance Fund rejected his request finding that he had not contributed to the pension scheme for a sufficiently long period. On 2 October 1995 the applicant lodged an objection with the Federal Insurance Fund. On 28 February 1996 the Commission for Objections of the Federal Insurance Fund (Widerspruchsstelle) rejected his objection. On 20 May 1996 the applicant offered to contribute retroactively (nachentrichten) to the pension scheme for the month of January 1984. In October 1997 the Federal Insurance Fund rejected the applicant’s request. On 7 March 1996 the applicant brought an action against the Federal Insurance Fund in the Düsseldorf Social Court arguing inter alia that he would be entitled to make contributions to the pension scheme retroactively for the month of January 1984. In April 1998 the court obtained information from the Polish Pension Fund relating to the applicant’s contributions to the Polish pension scheme. According to the Polish Pension Fund the applicant had been self-employed and had contributed to the public pension scheme until 31 December 1983. On 12 January 1999, following a hearing, the Düsseldorf Social Court rejected the applicant’s action confirming the findings of the Federal Insurance Fund. The court noted in addition that the time-limit for contributing retroactively had elapsed. On 18 February 1999 the applicant lodged an appeal with the Social Court of Appeal. On 18 May 1999 the court ordered the translation of Polish documents submitted by the applicant. On 24 June 1999 the court requested the applicant to submit the original Polish documents. On 17 June 1999, 9 November 2001, 13 June and 12 September 2002, 7 April and 18 September 2003 the court held hearings and questioned four witnesses altogether. Following a change of Social Code No. 6 as of 1 January 2001 the applicant requested the application of the new legal provisions to his case. On 18 September 2003 the Social Court of Appeal rejected the applicant’s appeal. The court acknowledged that he had been invalid since his heart attack on 21 December 1992, but confirmed that he had not contributed to the pension scheme for a sufficiently long period. It recalled that according to the provisions of Social Code No. 6 an insured would have had to contribute to the pension scheme for at least 36 months during the last five years preceding the occurrence of invalidity. That period could be extended exceptionally by taking into account previous contributions or periods during which certain benefits had been collected. Although the court took into consideration previous contributions made to the Polish pension system and periods during which the applicant had received unemployment benefits the applicant still did not reach the required minimum number of months. A further exceptional extension was rendered impossible because the court found that the applicant had not made contributions in respect of January 1984. The court pointed out that according to the Polish Pension Insurance the applicant had only made contributions until 31 December 1983. As regards the applicant’s own submissions the court found them to be inconsistent, since he had made different statements as to his employment or working record in the past. Furthermore, the court had grave doubts as to whether the applicant had actually been unemployed in Germany while receiving unemployment benefits since the witnesses questioned had indicated that he had worked illicitly. In addition the applicant had carried a licence to run a bar. However, the court left that question open since the absence of contributions for the month of January 1984 excluded an invalidity pension in any event. Lastly, the court held that also the application of the new legal provisions of Social Code No. 6 would not entitle the applicant to invalidity pension. The court refused the applicant leave to appeal on points of law. The applicant then lodged a complaint against the refusal of leave to appeal on points of law with the Federal Social Court, inter alia contesting the application of Social Code No. 6. The complaint reached the Federal Social Court on 26 January 2004. The applicant was granted an extension of one month of the time-limit for substantiating his complaint upon his own motion. His submissions reached the court on 5 April 2004 and on 24 June 2004 the Federal Social Court rejected the applicant’s complaint as inadmissible stating that he had not sufficiently substantiated his complaints.