FIRST SECTION
Application no. 52943/10
Borisav DAMJANAC against Croatia
lodged on 24 August 2010
STATEMENT OF FACTS
The applicant, Mr Borisav Damjanac, is a Croatian national of Serbian origin who was born in 1926 and lives in Belgrade, Serbia.
The application was lodged with the Court on 24 August 2010.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 December 1992 the Dubrovnik Office of the Croatia’s Pension and Invalidity Labour Fund (Područna služba u Dubrovniku Republičkog fonda mirovinskog i invalidskog osiguranja radnika Hrvatske) recognised the applicant’s right to a military pension based on his service in the Yugoslav People’s Army (Jugoslavenska naroda armija; hereinafter: the “YPA”) and the applicant started to receive payments of his pension to an address in Croatia where he resided.
On 1 October 1998 the applicant visited his son in Belgrade, Serbia and due to his medical condition, decided to stay with his son for a longer period. He continued to receive payments of his pension through a representative in Dubrovnik, Croatia.
On 9 June 2003 the applicant informed the Dubrovnik Office of the Croatian Pension Fund (Područna služba u Dubrovniku Hrvatskog zavoda za mirovinsko osiguranje) that he had changed his place of residence to Belgrade, Serbia, and requested that his pension be paid to his new address. The applicant relied on the Agreement between the Republic of Croatia and the Federal Republic of Yugoslavia on Social Security of 15 September 1997, which entered into force on 1 May 2005 (Ugovor između Republike Hrvatske i Savezne Republike Jugoslavije o socijalnom osiguranju).
On 30 September 2003 the Croatian Pension Fund discontinued payment of the applicant’s pension. It found that the Agreement between the Republic of Croatia and the Federal Republic of Yugoslavia on Social Security had not covered YPA military pensions and that there had not been reciprocity with Serbia in that respect.
On an unspecified date in 2003 the applicant lodged an appeal with the Appeal Council of the Executive Council of the Croatian Pension Fund (Žalbeno vijeće Upravnog vijeća Hrvatskog zavoda za mirovinsko osiguranje). On 24 November 2004 the Appeal Council upheld the first instance decision and dismissed the applicant’s appeal.
On an unspecified date in 2004, with additional pleadings of 8 November 2006, the applicant brought an action with the Administrative Court (Upravni sud Republike Hrvatske) against the decisions of the administrative bodies. The applicant claimed that no provision of the Agreement between the Republic of Croatia and the Federal Republic of Yugoslavia on Social Security of 15 September 1997 gave a ground for discontinuation of the payment of his pension.
On 8 March 2007 the Administrative Court dismissed the applicant’s action. It found that the payment of pension abroad was allowed only where it was based on an international agreement or by relying on the principle of reciprocity, which did not exist in the applicant’s case.
On an unspecified date in 2007 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske).
On 11 March 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as ill-founded.
In the meantime, the applicant changed his place of residence back to an address in Croatia and on 6 October 2004 lodged a request with the Croatian Pension Fund for continuation of payments of his pension.
It appears that on 1 November 2004 the Croatian Pension Fund continued with payments of the applicant’s pension.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 that he was deprived of his pension for a period of thirteen months and under Article 14 of the Convention that he was discriminated against based on his Serbian ethnic origin.
The applicant complains under Article 3 of the Convention that the procedure and findings of the domestic authorities amounted to a degrading treatment.
The applicant complains under Article 6 § 1 about the outcome and fairness of the proceedings before the domestic authorities and under Article 13 of the Convention that he did not have an effective domestic remedy.
QUESTIONS
1. Has there been an interference with the applicant’s right to peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1?
Has the applicant been deprived of his possessions in the public interest, in accordance with the conditions provided for by law and in accordance with the principles of international law, within the meaning of Article 1 of Protocol No. 1? If so, what is the exact legal basis for such deprivation and have the domestic authorities indicated with sufficient clarity the legal basis on which they relied?
In particular, did that deprivation impose an excessive individual burden on the applicant (see Lakićević and Others v. Montenegro and Serbia, nos. 27458/06, 37205/06, 37207/06 and 33604/07, § 62, 13 December 2011, Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98)?
2. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the ground of his ethnicity, domicile or the ground for pension entitlement, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 (see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 70, ECHR 2010)?
Full & Egal Universal Law Academy