Chroust v. the Czech Republic (dec.)

Information Note on the Court’s case-law No. 91

November 2006

Chroust v. the Czech Republic (dec.) - 4295/03

Decision 20.11.2006 [Section V]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Decision, with ex nunc effect, to refuse the applicant further entitlement to a benefit paid to former members of the armed forces:inadmissible

Article 6

Civil proceedings

Article 6-1

Access to court

Impossibility of obtaining judicial review of a decision to end payment of a benefit awarded to former member of the armed forces: inadmissible

Article 14

Discrimination

Decision to refuse a former member of the armed forces further entitlement to a benefit awarded to individuals who had belonged to other branches of the armed forces: inadmissible

From 1972 onwards the applicant worked for a number of bodies under the authority of the armed forces, in particular the Federal Security Service (disbanded in 1992) and later, from 1 January 1993 to 30 April 1994, the Czech Republic’s Security Information Service (SIS). After leaving that last post he applied for a service allowance. The department of social security, having regard to the SIS Act (Law no. 527/1992) and to the applicant’s service record for the 23 years that he had served in the armed forces, decided to grant him the allowance. The director of the SIS subsequently informed the applicant, on two occasions, that the amount of the allowance had been reassessed in his favour. In 1996, however, the director notified him that the reassessment had not been justified and requested the applicant to reimburse the overpayment. In 2000 the director decided, with prospective effect, that the applicant was not entitled to receive the service allowance. He observed that the 1994 decision had been taken ultra vires, because the matter fell within the purview of the SIS director. Accordingly, he himself took a new decision and considered that the applicant had not fulfilled the length-of-service requirement, because under the SIS Act only the applicant’s period of service after 16 February 1990 could be taken into account. The applicant appealed, claiming that his entitlement to receive the allowance in question had been acknowledged by previous acts of the SIS Director and that the period to be taken into account had to include his service between 1972 and 1990. The SIS Director dismissed the applicant’s appeal and confirmed the previous decision, noting that his predecessor’s acts were purely informative and could not be regarded as formal decisions. After giving his interpretation of Law no. 527/1992, he considered in this case that only the applicant’s post-1990 service could be taken into account.

The applicant brought an action before Prague City Court (Městský soud) seeking a review of the administrative decisions of 2000 and 2001. He complained that he had been deprived of a welfare-type allowance which had been granted to him by a final decision that could be presumed to have been correct (giving rise to an estoppel per rem judicatam) and disputed the selective and discriminatory interpretation of Law no. 527/1992 that had been given in the impugned decisions. On that issue he claimed that other categories of servicemen assigned to similar duties enjoyed different treatment since they received the allowance in question. The applicant further lodged a constitutional appeal against the same decisions, arguing that they were contrary to the principles of equality and legal certainty and to the rule-of-law principles whereby public authority could be exercised only within the bounds of the law and the validity of administrative acts could be presumed. The City Court ordered the discontinuance of the proceedings, finding that the courts had no jurisdiction to review the decisions of the SIS. The Second Division of the Constitutional Court dismissed the applicant’s appeal as being manifestly ill-founded, finding that the 1994 decision was null and void as it had been taken ultra vires.

In 2001 the applicant submitted to the Interior Ministry’s social security office a fresh application for an allowance in respect of his period of service in the armed forces up to 31 December 1992, prior to his service in the SIS. The application was referred to the SIS, whose director informed the applicant that he was not entitled to the allowance because his employment relationship had not ended on 31 December 1992 in conditions that allowed him to claim such an entitlement. Given that no such entitlement had existed, the obligation to pay the allowance could not have been transferred to the SIS and there was no need to rule on the matter. The applicant, considering that his application had not been properly dealt with, brought a judicial action to challenge the failure of the SIS to act. He mentioned that there were three other people in the same situation as himself and that, in one case (that of V.M.), the Constitutional Court had found a violation of the Constitution. His action was dismissed by the Prague City Court, which considered that there was no need to order the SIS to give a new decision. The court also pointed out that Law no. 527/1992 only took into account, for the calculation of the length of service, the period served in institutions that upheld the principles of democratic government. As to the difference between the applicant’s situation and that of V.M., the court found that the Constitutional Court had not examined whether their respective claims to the allowance were legitimate, but had only considered whether or not the decision of the Interior Ministry was null and void, having regard to the presumption of validity attaching to administrative acts. The applicant appealed on points of law against the judgment of the City Court and those proceedings were still pending on 27 October 2005, when the Government filed their observations.

Inadmissible under Article 6(1): As to the refusal to grant judicial review of the decisions given in the case by the SIS director, the applicant had lodged his constitutional appeal on 15 March 2001, the day after he had brought proceedings in the City Court and therefore well before that court’s decision of 11 March 2002 in which it found that it had no jurisdiction to review decisions of the SIS. Accordingly, the applicant had only directed his appeal against the SIS director’s decisions of 2000 and 2001 and had not complained about the lack of judicial review. If he had intended to complain to the European Court of Human Rights about the lack of judicial review by a domestic court, he should first have given the Czech Constitutional Court the opportunity to redress the alleged breach in accordance with the purpose of Article 35 of the Convention. As he had not done so, the Constitutional Court could not be criticised for failing to examine that question proprio motu: non-exhaustion of domestic remedies.

Inadmissible under Article 1 of Protocol No. 1: It was of little consequence that the applicant had acquired his possession by taking advantage of an erroneous decision in his favour, since, in respect of privileges afforded by law, the Convention applied when such privileges gave rise to a legitimate expectation of acquiring certain possessions. Between 1994 and 2000 the applicant had had the legitimate expectation of receiving what was owed to him based on the 1994 decision. He had therefore had a “possession”, within the meaning of Article 1 of Protocol No. 1, and the deprivation thereof by the decisions of 2000 and 2001 had constituted interference with his right to the peaceful enjoyment of his possessions. Moreover, that right had been at issue, albeit as an underlying factor, in the proceedings before the Czech Constitutional Court, and the complaint under Article 1 of Protocol No. 1 had thus been raised, at least in substance, before that court. On the merits, with regard to the lawfulness of the interference, in such matters it was for the national authorities to interpret the relevant legislation and no arbitrariness could be detected in the interpretation by the domestic authorities of the SIS Act (Law no. 527/1992), according to which the legislature had intended that the period to be taken into account for the granting of the allowance should correspond, not to the entire length of service within bodies under the authority of the Interior Ministry, but to service within only some of those bodies. Accordingly, the impugned interference was consistent with domestic law and pursued an aim in the public interest, namely to ensure compliance with the law. As to the proportionality of the interference, it first had to be noted that the applicant had not been obliged to reimburse the amounts he had unduly received between 1994 and 2000. Accordingly, the solution adopted was not disproportionate and the respondent State had struck a fair balance between the interests concerned: manifestly ill-founded.

Inadmissible under Article 14 in conjunction with Article 1 of Protocol No. 1: In so far as the applicant had complained of being discriminated against in comparison with other former members of the armed forces, the Court considered plausible the argument of the Government that there were distinctions between the different categories of servicemen. Moreover, in the case of V.M., which had been invoked by the applicant, it was to be noted that the Czech Constitutional Court had not ruled on whether V.M. had been entitled to the allowance in question. Consequently, having regard to the margin of appreciation afforded to States and in view of the legitimate aim pursued, the difference in treatment complained of in this case could not be regarded as unreasonable or as having created a disproportionate burden for the applicant: manifestly ill-founded.

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This summary by the Registry does not bind the Court.

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