N.K. v. Norway

The author of the communication is N.K., a Norwegian citizen born in 1935. She claims a violation by Norway of articles 11 (d) and (e) and 16 (c) of the Convention on the Elimination of All Forms of Discrimination against Women. The author is represented by her son, F.K. The Convention and the Optional Protocol thereto entered into force for the State party on 21 May 1981 and 5 March 2002, respectively.

On 19 March 2015, the Working Group on Communications under the Optional Protocol decided, pursuant to rule 66 of its rules of procedure, to have the issue of admissibility examined separately from the merits.

The author was married to M. from 1953 to 1979, when they divorced. During their marriage, she had accrued a right to her husband’s pension under the Public Service Pension Fund at a rate of 39.6 per cent, as stipulated in the Public Service Pension Act. Under the Marriage Act of 1918, her right to a widow’s pension as a divorcée was equal to that of a widow who remained married. In 1973, the Marriage Act was amended to introduce two conditions regarding a divorcée receiving the accrued pension right: (a) that she had attained 35 years of age at the time of divorce; and (b) that the marriage must have lasted for a minimum of five years. These conditions would not apply if the couple had children. This law was in force at the time of the divorce in 1979. The author met the conditions and the expectation of receiving the pension was taken into account in the divorce settlement.

In 1991, the law was again amended to tighten the conditions under which the widow’s pension would be payable. These were: (a) the divorcée must have attained 45 years of age at the time of the divorce; and (b) the marriage must have lasted for a minimum of 10 years. The exemption in cases in which the couple had children was annulled. The amendment was given retroactive effect, which, the author states, is in breach of the Constitution.

The author’s ex-husband died in 1996 and, one year later, the author’s application to the Public Service Pension Fund for the survivor’s pension was rejected on the grounds that she had not reached 45 years of age at the time of her divorce (under the new rules). The author therefore lost part of her pension.

The author lodged a complaint with the Social Security Tribunal, seeking a reversal of the decision of the Pension Fund, but her claim was rejected on 17 September 1999. She then lodged a complaint with the Ombudsman, which concluded, in a letter dated 23 December 2002, that the Tribunal had been correct in upholding the decision of the Pension Fund.

On 22 September 2003, the author filed a civil suit against the State with the Court of Appeal, which, on 21 February 2005, confirmed the decision of the Social Security Tribunal. That decision was further appealed to the Supreme Court, with the claim that the decision of the Tribunal was invalid because the amendment to the Marriage Act under which the decision was made had been applied retroactively, contrary to section 97 of the Constitution. The author had also claimed that the denial of pension rights was in breach of article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), together with the prohibition of discrimination enshrined in article 14 of the European Convention on Human Rights, comparing those women who met the criteria under the Marriage Act with those who did not, rather than women in comparison with men. On 8 March 2006, the Supreme Court held that the retroactivity had not been unreasonable or unfair and that the author did not belong to a discriminated-against group, her difficulties being of a specific and individual character.

The author applied to the European Court of Human Rights on 8 September 2006. She asserts that no claim of direct or indirect sex discrimination or of equal pay for equal work was ever made before the Court.¹ On 4 April 2008, the Court rejected her application as manifestly ill-founded. In letters dated 30 April, 7 May and 12 June 2008, claims of sex discrimination were, however, made before the Equal Opportunities Commissioner, who rejected the case on 30 August 2008. Consequently, the author brought the case before the Equal Opportunities Committee, which upheld the decision of the Commissioner.

1. In fact, the complaint was based on Protocol 1 to the European Convention on Human Rights, taken together with article 14 of the European Convention on Human Rights, i.e., discrimination as to “other status”, namely: (a) age; (b) different treatment between two subclasses of divorced women, i.e., those for whom the ex-husband’s death was after 1993 and those whose ex-husbands died before 1993; and (c) between divorced and still-married women. ↩

Lastly, the author complained to the European Free Trade Association (EFTA) Surveillance Authority on grounds of sex discrimination, in December 2008. The Surveillance Authority rejected the case on 13 October 2010. It concluded that the case fell outside the temporal scope of the Agreement on the European Economic Area, but decided to assess whether the rules on entitlement to the pension constituted an infringement of article 69 (1) of the Agreement nonetheless. It concluded that it did not appear that the Marriage Act constituted indirect discrimination. After requesting the author’s comments on the decision, which were not found to be relevant, the matter was closed and not referred to the EFTA Court by the Surveillance Authority.

The author claims that she is a victim of direct and indirect discrimination, as prohibited under articles 1, 11 (d) and (e) and 16 (c) of the Convention on the Elimination of All Forms of Discrimination against Women, owing to the amendment with retroactive effect to the Marriage Act, which annulled the right to the non-means-tested widow’s pension for those who had not reached 45 years of age or had not been married for 10 years at the time of divorce, and also repealed the exemption to those conditions where there were children of the marriage. The author was 44 years of age at the time of the divorce.

The author claims three types of discrimination. First, she states that the right to a non-means-tested widow’s pension was reserved to women only, until 1993 (when the law of 1991 came into effect), and this right was accrued by looking after minor children. The pension was made available because of the gender roles assigned to men and women at that time, encouraged by the authorities. It was equivalent to three pension points to look after minor children for that period. That only women are affected by the amendment makes it discriminatory. Second, she states that only divorced women are deprived of their rights under the Marriage Act because men were not given a non-means-tested widower’s pension. The author believes that the change in the law is to encourage women to go out to work and accrue their own pension points. Nevertheless, when the law was passed, the author was already too old to accrue her own pension. Moreover, she asserts that her right to her husband’s pension was denied to her because she had suffered a traffic accident and been receiving compensation in relation thereto since 1984. Nevertheless, losing her husband’s pension aggravated her economic condition. She claims that, had she been aware of the fragility of her pension right, she would have waived that right and secured for herself a larger lump-sum settlement at the time of the divorce. She is therefore being discriminated against on the basis of her marital status. Third, she asserts that the authorities are depriving only older divorced mothers of their widow’s pension, namely those who had looked after their children before 1967. She is therefore being discriminated against as to the enjoyment of social benefits owing to her age and gender.

In conclusion, the author requests that the violation by the State of her rights under the Convention be recognized and that she be awarded compensation for her loss of pension and subsidiary insurance.

By a note verbale dated 13 January 2015, the State party challenged the admissibility of the communication.

The State party submits that the author’s complaint is inadmissible on the basis of article 4 (2) (a) of the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women, given that an identical complaint has been considered and dismissed by the European Court of Human Rights. It asserts that this fact has been accepted by the author.

The State party submits that individual proceedings before the European Court of Human Rights have been accepted by the Committee as constituting proceedings of international investigation or settlement.² The author’s complaint had been made to the Court under article 14 of the European Convention on Human Rights (prohibition against discrimination), in relation to article 1 of Protocol 1 to that instrument (protection of property). The State party asserts in this regard that the Committee should take note of the fact that the Supreme Court found that article 1 of Protocol 1 was applicable, but that the author had not been subjected to discrimination within the meaning of article 14 of the European Convention on Human Rights.

2. Communication No. 8/2005, Kayhan v. Turkey, decision of inadmissibility adopted on 27 January 2006, para. 7.3. ↩

The State party refers to the finding of the European Court of Human Rights on admissibility under articles 34 and 35 of the European Convention on Human Rights that, “in light of the material which the court has had accessible … it did not find under any circumstances anything which indicated that there had taken place a violation of the rights and freedoms described and protected under the Convention and its protocols”. The State party argues that, even though on its face this was an admissibility decision, in fact the Court had “examined” the case within the meaning of article 4 (2) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and had decided that there was no reason to proceed with it.

The State party reiterates that article 35 (3) of the European Convention on Human Rights provides the European Court of Human Rights with the opportunity to declare complaints inadmissible even after having considered the merits of the complaint. Under the Court’s case law, “manifestly ill-founded” is interpreted to include instances in which the Court, after considering the merits, sees no reason to proceed with the complaint.

The State party supports its request for a finding of inadmissibility by citing the decision of the Human Rights Committee in Wallmann et al v. Austria,³ whereby that Committee found that, when the European Court of Human Rights went beyond an examination of purely procedural admissibility criteria, the matter could be accepted as having been examined under another procedure of international investigation or settlement within the meaning of equivalent admissibility criteria under the International Covenant on Civil and Political Rights.

3. Communication No. 1002/2011, Wallmann et al v. Austria, views adopted on 1 April 2004. ↩

The State party concludes that, given that the author has already submitted a similar complaint to the European Court of Human Rights, the same matter has already been examined under another procedure of international investigation or settlement within the meaning of article 4 (2) (a) of the Optional Protocol. It emphasizes that the Committee has not yet stated its views on whether it follows the Human Rights Committee on this matter and invites it to do so.

The State party therefore requests the Committee to find the complaint inadmissible under article 4 (2) (a) of the Optional Protocol.

The author’s comments were received on 2 March 2015.

The author states that she does not agree that the matters before the Committee in the present communication and those previously brought before the European Court of Human Rights are identical, as asserted by the State party. She claims that she did not invoke the Equal Opportunities Act of 1978 (now 2013) or the Convention on the Elimination of All Forms of Discrimination against Women before the Supreme Court or the European Court of Human Rights and that sex discrimination was not mentioned in her submissions to the Court of Appeal, the Supreme Court or the European Court of Human Rights.

The author concedes that sex discrimination was considered in her complaint to the EFTA Surveillance Authority and she states that it is not clear to her whether this would qualify as an international investigation or settlement. The claim was dismissed on the grounds that the infringement of European Economic Area law was not clearly explained and, in any case, the matter was found to be outside the temporal scope of the Agreement on the European Economic Area, given that the periods of work had taken place before 1 January 1994, when the Agreement entered into force for the State party. The claimant noted in her complaint that, in its decision, the Surveillance Authority had stated that “it did not appear … that the Marriage Act constituted indirect discrimination”.

The author states that her complaint to the European Court of Human Rights was exclusively a demand to actualize a widow’s pension on the basis that she had been deprived of the same through age discrimination. In the current complaint, she is claiming that only older women are disadvantaged by the retroactive law, which impinges upon a previously agreed contract. The basis for the current complaint is discrimination as to age, sex and disability and to review the Government’s encroachment upon the divorce settlement in order to put the author on an equal footing with her husband.

The author therefore claims that the State party was in error with regard to the cases cited above and refers to the pertinent paragraphs in her initial submission, in which she stated that discrimination on grounds of sex had not been brought before the courts.

The author reiterates that the matter before the European Court of Human Rights pertained to age discrimination and the right to property as between two different classes of divorcées and between divorcées and married women, whereas the present communication relates to age, sex and disability discrimination. She states that, even though discrimination would be covered under the same article of the European Convention on Human Rights (art. 14), that she did not invoke these elements means that they were not considered and she calls upon the State party to show that the Court undertook such analysis on its own initiative. The statement “did not find under any circumstance that there has been a violation” does not indicate that all types of discrimination were considered, given that the Court would limit itself to those elements invoked. Furthermore, because the pleadings were in Norwegian and only one judge understood that language, she doubts that the other two could possibly have considered the matter.

The author explains that in fact sexual discrimination was mistakenly not invoked as part of her complaint to the European Court of Human Rights in 2006 and therefore the two complaints do not cover the same substantive rights. Furthermore, she claims that the statement by the Court that her complaint was manifestly ill-founded does not necessarily imply that a review on the merits was conducted; rather, this was a pro forma response. Consequently, she asserts that the matter before the Committee is not the same matter within the meaning of article 4 (2) (a) of the Optional Protocol.

She further states that, in relation to the State party’s reference to Wallmann et al v. Austria, that matter rested on whether a reservation was applicable to the European Court of Human Rights as it had been to the European Commission of Human Rights and a linguistic difference regarding the right to freedom of association as between the European Convention on Human Rights and the International Covenant on Civil and Political Rights. This is not relevant to her case, given that the matter under consideration rests on whether a claim on grounds of sex discrimination is the same as a claim of age discrimination.

The author therefore requests that the case be considered on the merits.

The author made a further submission on 21 September 2015.

The author reiterates that the European Court of Human Rights examined her case as to “other status” only and not sex discrimination. Given that sex discrimination was not explicitly invoked, it could not have formed part of the reasoning on which basis the Court found there to have been no prima facie violation. The author also states that, in any case, it is impossible to know from the pro forma decision on admissibility provided by the Court whether any consideration of the merits was conducted.

The author also contends that article 14 of the European Convention on Human Rights, as it pertains to sex discrimination, is not commensurate with articles 11 (d) and (e) and 16 (c) and (h) of the Convention on the Elimination of All Forms of Discrimination against Women and the Committee’s general recommendations No. 21 (1994) on equality in marriage and family relations and No. 29 (2013) on the economic consequences of marriage, family relations and their dissolution, allowing a much more detailed consideration of sex discrimination, given that, were these covered by the European Convention on Human Rights, there would have been no need for Norway to ratify the Convention on the Elimination of All Forms of Discrimination against Women.

The author restates that the first time that she invoked sex discrimination was before the Equal Opportunities Commissioner, after her case had been found inadmissible by the European Court of Human Rights.

As to the State party’s reference to Wallmann et al v. Austria, the author states that this case did not turn on whether the same matter had been heard by the European Court of Human Rights, but rather focused on whether the State party’s reservation as to the European Commission of Human Rights applied also to the Court. Although, as the author stated in her previous submission, the issue of the “same matter” has been considered, it was not the main point, given that none of the parties disputed that both pleadings had been on the same substantive rights.

The author cites the case of N.S.F. v. the United Kingdom of Great Britain and Northern Ireland,⁴ that of an asylum seeker, in which the issue of the same matter being brought before the European Court of Human Rights was raised. In that case, according to the author, the Committee had stated that it would not have dismissed the case under article 4 (2) (a) (had that ground been considered), given that its author had not invoked substantive rights covering sex discrimination before the Court, which was the matter before the Committee in that case.

4. Communication No. 10/2005, decision of inadmissibility adopted on 30 May 2007. ↩

The author also refers to an analogous case that had been before the Committee on the Elimination of Racial Discrimination, Koptova v. the Slovak Republic,⁵ in which she asserts that that Committee has shown that it might be prepared to examine the “same matter” as had been before the European Court of Human Rights because, as indicated in paragraph 5.7 of the Committee’s opinion, “the simultaneous filings of claims involving similar matters with the Committee and the European Court are founded on different legal bases and seek different legal remedies”. She states that the assessments reached by the two different bodies would be very different in her own case and again asserts that, should they be exactly the same, there would have been no reason for Norway to ratify the Convention on the Elimination of All Forms of Discrimination against Women.

5. Communication No. 13/1998, opinion of 8 August 2000. ↩

The author offers an alternative assertion in the event that the Committee finds that her communication is inadmissible on the grounds that the European Court of Human Rights considered sex discrimination on its own initiative under article 14 of the European Convention on Human Rights, which she disputes. The alternative assertion is that two decisive new facts have come to light since the decision by the Court, which means that the same matter could not have been before the Court.

The author states that, in a written pleading of 16 May 1960 in “Case of State Pensioner” before the Supreme Court, it was asserted that the pensioner’s widow whose entitlement had crystallized had a constitutionally protected right to a pension on equal conditions with old-age pensioners, given that, she claims, it is explicitly stated in that case that “both come in the same position”. The Supreme Court endorsed this position for the main part, stating that there was only a difference in extent but no significant difference between pensioners and active civil servants who, by contribution and work, have accrued certain pension rights. The author therefore claims that the finding by the Supreme Court in her case was erroneous, given that it held that the judges in 1962 preserved the privilege for old- age pensioners only and described the pensioners’ widows as having a derived right, which is weaker than a right accrued in accordance with a contract. The author claims that the comments of the Attorney General, in a written pleading in a case in 2015 in which he states that the widow’s pension is “indirectly positive discrimination”, show that the pension is seen as a social benefit for needy widows, which is not covered by the term “possession” under article 1 of Protocol 1 to the European Convention on Human Rights. She states that this is not in keeping with comprehensive documentation from 1916 to 2006, the Convention, article 69 (1) of the Agreement on the European Economic Area or the judgment of the EFTA Court against Norway in Norway v. Public Service Pension Fund.⁶ The author therefore claims that this error of law on the part of the Supreme Court is a new fact that was not before the European Court of Human Rights in 2008.

6. EFTA Surveillance Authority v. Kingdom of Norway, case No. E-2/07, judgment of 30 October 2007. ↩

The erroneous reversal by the Supreme Court of the protection of the widow’s pension right came to the author’s attention only in 2015, when her representative visited the State archive. The author cites three cases, two cases before the European Court of Human Rights and one before the Human Rights Committee, which, she asserts, corroborate her position by showing that the ruling by the Supreme Court conflicts with the case law of the European Court of Human Rights. These cases were not cited in her claim before the European Court of Human Rights in 2008. The first, Neill and others v. United Kingdom, confirmed the legitimate expectation to a husband’s pension as a pecuniary right, unrelated to contribution, given that the member’s work agreement and contribution were the deciding factors as to the existence of the right. In the second case, N.K.M. v. Hungary, the European Court of Human Rights found that a severance payment (for which no prior contribution had been made) was not a mere ex gratia entitlement, but an acquired right statutorily guaranteed in exchange for service rendered. The author asserts that neither of these cases supports the position that the right to a widow’s pension is affirmative action or indirect positive discrimination. She therefore claims that, because the European Court of Human Rights had no opportunity to review these cases in 2006 when her case was before it, because they had not been submitted or had not been decided, the facts before the Committee are not the same as those before the European Court of Human Rights.

The author also refers to a case, Pauger v. Austria,⁷ in which the Human Rights Committee considered the matter of the right to a widower’s pension. It found in favour of the author, agreeing that he had been treated in a discriminatory manner. The author in that case reapplied to the Human Rights Committee when his circumstances changed and the Human Rights Committee found the second claim admissible, even though the second claim had been dismissed as inadmissible by the European Court of Human Rights, and considered the merits afresh.⁸ This, the present author claims, is supportive of her position that, when new facts come to light, by which she means the above-mentioned case law, in the time between one decision and another, the matter at hand cannot be held to be the same as that considered previously. She therefore asserts that the facts now before the Committee are new and have never been considered before.

7. Communication No. 415/1990, Pauger v. Austria, views adopted on 26 March 1992. ↩
8. Communication No. 716/1996, Pauger v. Austria, views adopted on 25 March 1999. ↩

The author therefore claims that, in line with her initial submission, neither the Supreme Court nor the European Court of Human Rights considered her case under the rubric of sex discrimination, meaning that the same matter cannot be said to have been before those courts, given that sex discrimination is the primary basis on which she now brings her complaint to the Committee. Furthermore, she claims that, even if it is decided that the European Court of Human Rights considered sex discrimination on its own initiative, the case law cited above shows that the Supreme Court erred in its decision in her case and that, because she had not been aware of this error, and so did not cite this case law, it was not reviewed by the European Court of Human Rights. Consequently, the author submits that there are fresh facts before the Committee that were not considered by the European Court of Human Rights and reiterates her request that the Committee find the matter admissible and proceed to an examination on the merits.

In accordance with rule 64 of its rules of procedure, the Committee must decide whether the communication is admissible under the Optional Protocol.

The Committee takes note of the author’s claim that the State party has violated her rights under the Convention by implementing a retroactive law, which impinged upon her right to a widow’s pension, available only to women, without providing for the fact that she was not able to regain those pension points earned by looking after small children, as encouraged by the State. She claims that this constitutes direct and indirect discrimination.

In this regard, the Committee notes the author’s own consistent contention, in her initial complaint and in both sets of comments on the State party’s submission, that no allegation of sex discrimination was ever formulated or presented by, or on behalf of, the author before the State party’s courts. The author herself argues that the first time that she brought such claims was before the Equal Opportunities Commissioner, in 2008. The Committee also notes that there is nothing on file to suggest that any allegations of sex discrimination were, in fact, considered at any time by the State party’s courts. The author did bring administrative proceedings based on sex discrimination before the Commissioner and challenged that decision before the Equal Opportunities Committee, but did not appeal against the final administrative decision before the national courts, as is provided for under that body’s constitutive legislation. The Committee recalls that, under article 4 (1) of the Optional Protocol, authors must exhaust all available domestic remedies. It also recalls its jurisprudence, according to which the author must have raised in substance at the national level the claim that she wishes to bring before the Committee, so as to provide the national authorities and/or courts with an opportunity to deal with such a claim. In this case, the national courts have not had such an opportunity.

In the light of this conclusion, the Committee will not examine admissibility on any other grounds.

The Committee therefore decides that: (a) The communication is inadmissible under article 4 (1) of the Optional Protocol on the basis that all available domestic remedies have not yet been exhausted;