FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 52748/99
by Momir JOVIĆ
against Croatia
The European Court of Human Rights, sitting on 22 May 2001 as a Chamber composed of
MrG. Ress, President,
MrA. Pastor Ridruejo,
MrI. Cabral Barreto,
MrV. Butkevych,
MrsN. Vajić,
MrJ. Hedigan,
MrM. Pellonpää, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced on 6 October 1999 and registered on 19 November 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Momir Jović, is a Croatian national, born in 1933 and living in Rijeka. He is represented by Mr Miloš Markiš, a lawyer practicing in Rijeka. The respondent Government are represented by their agent Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant served in the Yugoslav People’s Army (YPA) and in 1983 retired from service. His military pension was assessed according to his rank and years of service and was paid from the Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia.
However, on 1 February 1993, the Croatian Social Security Fund, Rijeka Office, assessed the applicant’s pension, as from 1 October 1992, to 63,22 % of the amount he had received in December 1991. The applicant appealed against that decision and after his appeal was dismissed, instituted administrative proceedings with the Administrative Court, which dismissed the applicant’s claim on 2 February 1994.
On 1 August 1994 the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and the Administrative Court violated his constitutional rights.
The Constitutional Court rejected the applicant’s claim on 21 April 1999.
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 alone and taken in conjunction with Article 14 of the Convention, that the decision to decrease his military pension discriminated against him and violated his right to property.
The applicant also complains that the proceedings concerning his constitutional complaint lasted unreasonably long.
THE LAW
1. The applicant complains that the decision to decrease his military pension violated his right to property under Article 1 of Protocol No. 1 and discriminated against him contrary to Article 14 of the Convention.
Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
a) The Government argue firstly that the present application is incompatible ratione personae with the provisions of the Convention insofar as the Republic of Croatia continued to pay the applicant’s pension after the payments from the federal fund in Belgrade had stopped. Consequently, the applicant is not a victim of any violation of the rights guaranteed by the Convention, as he has been receiving his pension without any interruptions.
The Court recalls that, according to its constant case-law, the application is incompatible ratione personae with the provisions of the Convention in the case when it is directed against a State which is not a party to the Convention or against a private person or when the applicant fails to show that he might be a victim of a violation of the Convention rights.
The Court notes, however, that the present application is directed against a State that has ratified the Convention and against a decision by the State authorities to decrease the applicant’s pension. Furthermore, the applicant may claim to be a victim of the violation of the rights guaranteed by the Convention because he alleges that the fact that his pension has been decreased violates Article 1 of Protocol No. 1.
Therefore, the objection of incompatibility ratione personae of the application must be dismissed.
b) The Government submit further that the part of the application relating to events which took place prior to 5 November 1997, when the Convention entered into force in respect of Croatia, is outside the Court’s competence ratione temporis.
In this connection, the Court recalls that Croatia recognised the competence of the Court to receive applications “from any person, non-governmental organisation or group of individuals claiming to be a victim of a violation by Croatia of the rights recognised in the Convention through any act, decision or event occurring after 5 November 1997.” It follows that the period to be taken into consideration by the Court starts on 5 November 1997.
As regards the facts of the present case, the Court recalls that the applicant’s pension was reduced already in 1992. However, he challenged before the Constitutional Court the decisions taken referring in substance to the matters which are now before the Court. The Constitutional Court did not decide in the applicant’s case before April 1999, i.e. well after the Convention had entered into force in respect of Croatia. In these circumstances the Court does not find that it is prevented ratione temporis from examining the complaints made and accordingly dismisses the Government’s objection in this respect.
c) As regards the substance of the complaint made under Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention, the Government invite the Court to declare this part of the application inadmissible as being manifestly ill-founded. In this respect they contend that the European Commission of Human Rights distinguished the pension system where individual contributions were made from the pension system based on the principle of solidarity where there is no connection between the contributions paid and the later pensions. Only the first of those systems founded some property rights, while the second system does not guarantee any payments of a certain amount of pension, but only an expectation of a pension where its amount depends on the conditions prevailing at the time of payments.
In the present case, the Government contend further that the applicant’s right to a pension was recognised within a specific pension system of the YPA’s officers in Belgrade. The Republic of Croatia, after the dissolution of the former Yugoslavia, assessed the applicant’s pension to 63,22 % of the amount he had received in December 1991. However, the applicant’s property rights were not violated by a decrease of his pension as he had never been a member of any pension system in Croatia and he had never paid any contributions to the Croatian pension system. The applicant’s pension is based on the principle of solidarity as there is no direct link between the contributions paid to the fund in Belgrade and the payments of his pension in Croatia.
Furthermore, the States enjoy quite a wide margin of appreciation in regulating their social policy and Croatia has no obligation under international law towards the former YPA officers to ensure to them the amount of pension that they had received from the fund in Belgrade.
In respect of the alleged violation of Article 14 of the Convention, the Government contend that the only question is whether the laws that served as a basis for reducing the applicant’s pension were discriminatory. The Government argue that they are not as they do not discriminate against the applicant on any basis. The pensions of all former YPA officers are regulated in the same manner. In addition, the Government point out that Article 14 is not independent, but may be invoked only in connection with some substantive Article of the Convention. As the right to a pension in the specific circumstances of the present case may not be regarded as a property right, there cannot be any violation of Article 14 of the Convention, having in mind that it is not autonomous.
The applicant argues that the Republic of Croatia took over the rights and obligations of the former Yugoslavia, and is therefore obliged to pay his pension in the same amount as it was assessed and paid from the former federal pension fund in Belgrade.
Contrary to the Government’s claim the applicant had paid contributions to the federal pension system and exactly due to those contributions his pension was assessed by the federal authorities to 85 % of the pension base figure.
As to the violation of Article 14, the applicant contends that by reducing only the former YPA officers’ pensions the Croatian authorities have discriminated against that category of citizens.
The Court recalls that, according to its established case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since its effect comes into play solely in relation to “the enjoyment of rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent that Article is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the rights and freedoms guaranteed by the Convention (see the Gaygusuz v. Austria judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, p. 1141, § 36).
With respect to the present case, the Court observes that it is not limited to the question of whether or not Croatian law operated discriminatorily but also relates to the loss of financial benefits attached to the former Yugoslav People’s Army officers, which are pecuniary rights. The Court therefore considers that the complaint falls to be examined under Article 1 of Protocol No. 1 to the Convention read together with Article 14 of the Convention (see, mutatis mutandis, the Gaygusuz judgment, cited above, §§ 39-41, and Domalewski v. Poland (dec.), no. 34610/97, ECHR 1999-V).
The Court recalls, however, that even though the rights stemming from the payment of contributions to the social insurance system, in particular the right to derive benefits from such a system - for instance in the form of a pension - can be asserted under Article 1 of Protocol No. 1, this provision cannot be interpreted as giving an individual a right to a pension of a particular amount (see Müller v. Austria, application no. 10671/83, Commission decision of 1 October 1975, Decisions and Reports (DR) 3, p. 25; Skorkiewicz v. Poland (dec.), no 39860/98, 1 June 1999, unpublished, and Domalewski v. Poland, cited above).
The Court notes further that, for the purposes of Article 14 of the Convention, a difference in treatment is discriminatory if it has no objective and reasonable justification, which means that it does not pursue a “legitimate aim” or that there is no “reasonable proportionality between the means employed and the aim sought to be realised”. Moreover, in this respect the contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see the Gaygusuz judgment, cited above, § 42).
As regards the circumstances of the present case the Court recalls that the same issue was raised in the case of Janković v. Croatia (see Janković v. Croatia (dec.), no 43440/98, ECHR 2000-X) where the Court held that although the applicant’s pension had been reduced it could not be said that it was inferior to pensions of all other categories of pensioners in Croatia. The applicant had only lost certain privileges that had been formerly granted to him as a military officer of a state that does no longer exist.
Furthermore, the Court considered that the reduction of the former Yugoslav People’s Army officers pensions by the Croatian authorities represented a method of integrating those pensions into the general pension system of Croatia (see, mutatis mutandis, Schwengel v. Germany (dec.), no. 52442, 2 March 2000, unpublished). The Court considered also that States enjoyed quite a wide margin of appreciation in regulating their social policy. This also applied in the specific context of the dissolution of the former Yugoslavia and with regard to persons who had been granted special privileges by the former State, as, for instance, members of the former State’s army, in particular in view of the fact that ever since January 1973 all contributions to the pension fund of the Yugoslav People’s Army officers had been paid to the federal fund in Belgrade which, failing any agreement on State succession, had not been divided among the successor States. The Court noted, in that respect, that the Croatian authorities had accepted to pay pensions to former Yugoslav People’s Army officers and had adjusted these pensions with those of other pensioners so that the average pension of a Yugoslav People’s Army officer was still slightly higher than the average pension in Croatia. The Court observed that in the case of Janković v. Croatia, by virtue of the decision of the Social Security Fund, Pula Office of 12 December 1992, Mr Janković, like the applicant in the present case, had lost a certain percentage of his pension. The Court further found that Mr Janković had, however, retained all the rights attached to his ordinary pension under the general social insurance system. Consequently, the Court considered that Mr Janković’s pecuniary rights stemming from the contributions paid into his pension scheme had remained the same. In those circumstances, the Court did not consider that Mr Janković’s right to derive benefits from the social insurance scheme was infringed in a manner contrary to Article 1 of Protocol No. 1, in particular as the loss of a certain percentage of his pension had not resulted in the essence of his pension rights being impaired. Nor did the Court consider that divesting Mr Janković of a part of his pension amounted to discrimination contrary to Article 14 of the Convention (see Janković v. Croatia, cited above).
The Court does not see any reason to depart from its decision adopted in the case of Janković v. Croatia.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected as inadmissible pursuant to Article 35 § 4.
2. The applicant further complains that the length of the proceedings before the Constitutional Court exceeds reasonable time within the meaning of Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government invite the Court to declare this part of the application inadmissible on the ground that it is manifestly ill-founded within the meaning of Article 35 of the Convention. In this connection they contend that the applicant did not suffer any harm as a result of the length of proceedings before the Constitutional Court. They also maintain that the case was one of significant complexity and that it formed part of a large number of cases relating to the same problem. They further argue that there had been several changes in the laws regulating pensions of former YPA officers and that numerous applicants had contested all those laws before the Constitutional Court.
The Government contend further that the outcome of those proceedings was closely related to the outcome of the applicant’s complaint, and that the proceedings concerning the constitutionality of the laws that regulated pensions of former Yugoslav People’s Army officers required detailed reports from and discussions with legal experts of various backgrounds as well as with the representatives of the pensioners themselves.
The proceedings also required reports from the Croatian Government and the Ministry of Labour and Social Welfare. The Government further argue that at its session of 19 November 1997 the Constitutional Court decided that prior to examination of the applicant’s case it was necessary to examine another case, concerning the Act incorporating into Croatian law the former federal law regulating the pension insurance for military personnel (the Yugoslav Military Pensions Act), which was closely connected to the issues at stake.
Finally, as new legislation regulating pension rights of all Croatian citizens was enacted as from 1 January 1999, all proceedings concerning the constitutionality of the previous laws that had regulated pension rights of former Yugoslav People’s Army officers were terminated on 20 January 1999. Consequently, on 7 April 1999 the applicant’s complaint was dismissed.
The applicant disagrees with the Government and argues that the length of the proceedings that amounted to about five and half years was excessive.
The Court recalls that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and that of the competent authorities, and the importance of what was at stake for the applicant in the litigation (see the Süßmann v. Germany judgment of 16 September 1996, Reports 1996-IV, p. 1172-73, § 48; the Pammel and Probstmeier v. Germany judgments of 1 July 1997, Reports 1997-IV, §§ 60 and 55, respectively; and Gast and Popp v. Germany, no 29357/95, § 70, ECHR 2000-II).
The Court notes further that the period to be taken into account after the entry into force of the Convention in respect of Croatia, i.e. 5 November 1997, amounts to one year, five months and sixteen days. At the moment of ratification, the proceedings had been pending for three years, three months and two days.
The applicant’s conduct did not cause any delay in the proceedings.
As regards the conduct of the Constitutional Court, the Court recalls that, as it has repeatedly held, Article 6 § 1 imposes on Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time.
Although this obligation applies also to a Constitutional Court, it cannot be construed in the same way as for an ordinary court. Its role as guardian of the Constitution may make it particularly necessary for a Constitutional Court to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms. Furthermore, while Article 6 requires that judicial proceedings be expeditious, it also lays emphasis on the more general principle of the proper administration of justice (see the Süßmann judgment, cited above, p. 1174, §§ 55-57; Gast and Popp v. Germany, cited above, § 75, and Janković v. Croatia, cited above).
In the instant case, the Court finds that it appears reasonable for the Constitutional Court to have joined all the cases so as to obtain a comprehensive view of the legal issues arising from the integration of Yugoslav People’s Army officers’ pension rights into the general pension system of Croatia (see, mutatis mutandis, the Süßmann judgment, cited above, § 59; Gast and Popp v. Germany, cited above, § 76 and Janković v. Croatia, cited above).
The Court further notes the Government’s explanations on the delays caused by the enactment of several laws concerning the decrease of the former Yugoslav People’s Army officers’ military pensions as well as the prior examination of the Yugoslav Military Pensions Act.
The Court also notes that the case involved complex legal issues as to the obligations of Croatia towards the retired officers of the Yugoslav People’s Army in the specific context of the dissolution of the former Yugoslavia, failing any agreement on state succession.
In the light of the circumstances of the present case, in particular the fact that the proceedings lasted for only one year five months and sixteen days after the entry into force of the Convention in respect of Croatia, the Court finds that that delay does not appear substantial enough for the length of the proceedings before the Constitutional Court to have exceeded a “reasonable time” within the meaning of Article 6 § 1 (see, mutatis mutandis, Gast and Popp v. Germany, cited above, § 81 and Janković v. Croatia, cited above).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy