Higher Social Court (LSG) - Berlin-Brandenburg, Judgment as of 7/8/2010
File number L 13 VG 25/07

Summary

The Higher Social Court ruled that the plaintiff was entitled to a disablement pension for a limited period of time and to therapeutic treatment for posttraumatic stress disorder.

The plaintiff applied in 2001 to the public pensions office in Berlin for compensation benefits pursuant to the OEG. She claimed that she suffered psychological disorders on account of being sexually abused by her father and his friend. The public pensions office denied the application because in its opinion the acts, which were supposed to have taken place in 1972/1973 or 1975/1976, had not been proved. The legal action brought in response to this was dismissed by the Social Court of first instance, the court having held that the acts had not been adequately demonstrated.

In the review proceedings brought before the Higher Social Court, the plaintiff described two instances of sexual assault by her father. The memories had come back to her during therapy sessions.
The Higher Social Court held that the acts had been adequately proved. Generally an act must be so probable that, when viewed within the context of the events as a whole, the court is convinced of it. This was not the case here. The father had contested the acts and there were no witnesses available. The brother, who was supposed to have been present during one of the acts, refused to testify. The father’s friend, who was supposed to have participated in the second act, had died in the meantime. No other evidence existed.
However, the court pointed out here that in such cases, the law of compensation allows for an easing of the evidentiary rules (section 6 (3) OEG in conjunction with section 15 KOVVfG, the act governing administrative proceedings for pensions of war victims). According to this, if documents or evidence cannot be produced, then the decision must be based on the information provided by the applicant in so far as it appears plausible. Such an easing of the evidentiary rules is common in cases of sexual abuse because it is seldom that witnesses are available.
The court considered the statements of the plaintiff to be plausible. According to well-established precedent, it suffices if, on the balance of probabilities, it could have happened the way she said it did. The existence of doubts does not detract from this. The fact that the plaintiff did not make the statements until the proceedings had already begun also did not detract from the plausibility.

The expert opinion on credibility that was demanded by the public pensions office was rejected by the court, because an expert psychological opinion on the testimony could not supply any proof of the acts. The court held that the practice of using such expert opinions in criminal proceedings is not transferable to social compensation law. The stringent standard of proof required in light of the consequences of a criminal conviction does not apply especially with respect to an application of the OEG.
The court also found that the plaintiff suffered from posttraumatic stress disorder as a result of the acts. Causality will be found exists if there is more weighing in favour of a causal connection than against it.
Because the plaintiff’s symptoms had improved in the interim, the pension was awarded for a limited time only.

Decision in full text: