AS TO THE ADMISSIBILITY OF
Application No. 39923/98
by P.P.
against Slovenia
The European Commission of Human Rights (First Chamber) sitting
in private on 1 July 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA,
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 November 1997
by P.P. against Slovenia and registered on 17 February 1998 under file
No. 39923/98;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Slovenian citizen, born in 1939 in what is now
The Federal Republic of Yugoslavia (Serbia and Montenegro). The facts
of the application, as submitted by the applicant, may be summarised
as follows.
In the summer of 1991, when Slovenia declared its independence,
the federal army agreed to withdraw from Slovenia. The applicant, who
had been living and working as an officer of the Yugoslav Federal Army
in Slovenia since 1957, had been ill and applied for retirement and an
invalidity pension on 30 September 1991.
On 4 January 1992 (with effect from 1 January 1992), the Military
Social Security Authority in Belgrade found the applicant to be
entitled to retire on the ground of invalidity disablement.
Following the dissolution of former Yugoslavia and as the
relevant bilateral treaties had not been concluded, the Government of
the Republic of Slovenia issued a Decree on the Advance on Payment of
Military Pensions (Official Gazette RS, no. 4/92 of 25.1.1992) by which
it agreed to pay out monthly an advance on military pensions to
Slovenian citizens who had lodged the application and fulfilled certain
conditions to obtain military pensions by 18 October 1991, the date of
final withdrawal of the federal army from Slovenia.
The applicant applied for an advance on payment of his military
pension on 29 January 1992. The Pension and Invalidity Insurance Fund
(Skupnost pokojninskega in invalidskega zavarovanja) found on 31 March
1992 that the applicant had no right to such an advance as he was
considered to have taken an active part in the aggression on Slovenia
and therefore did not fulfil the conditions prescribed by the
Government decree.
The applicant applied for judicial review. The Court of
Associated Labour (Sodisce zdruzenega dela) rejected the application
on 19 March 1993. The Court confirmed that the applicant did not comply
with the conditions prescribed, however, on different grounds. It found
that it could not be established that the applicant took part in the
agression but that he did not fulfil the conditions for a military
pension by 18 October 1991, as prescribed.
The applicant appealed. The Higher Labour and Social Court (Visje
delovno in socialno sodisce) in Ljubljana rejected the appeal on 2 June
1994 and confirmed the previous decision.
The applicant applied for revision to the Supreme Court. Revision
was refused on 19 September 1995 as the Supreme Court found no error
in the application of the relevant legislation.
On 11 December 1995 (with a request to accelerate the proceedings
on 8 December 1996) the applicant lodged a constitutional complaint
before the Constitutional Court alleging breaches of his constitutional
rights to equality before the law, to property, social security and to
human dignity and personal security. To date the Constitutional Court
has not yet decided.
COMPLAINTS
The applicant alleges that the courts erred in establishing the
facts in his case and so deprived him of his right to pension. He
claims that although he did not commit any criminal offence he has so
been "de facto convicted". He also complains about the length of
proceedings before the Constitutional Court. The applicant invokes
Articles 6 and 7 of the Convention and Article 1 of Protocol No. 1.
THE LAW
1. The applicant complains under Article 6 (Art. 6) of the
Convention about the length of proceedings before the Constitutional
Court of Slovenia. The Commission considers that it cannot, on the
basis of the applicant`s submissions, determine the admissibility of
this complaint and that it is therefore necessary, in accordance with
Rule 48 para. 2 (b) of the Rules of Procedure, to communicate this part
of the application to the respondent Government.
2. The applicant further complains under Article 7 (Art. 7) of the
Convention that he has been wrongly deprived of his pension and
therefore punished as if he had committed a criminal offence.
Article 7 (Art. 7) of the Convention, insofar as relevant,
provides as follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the criminal offence
was committed."
The Commission recalls that Article 7 (Art. 7) of the Convention
provides that a person should not be convicted or punished for a
criminal offence which was not prescribed by law at the time it was
committed. In the present case, the applicant has not been held guilty
of a criminal offence, and the provision clearly does not apply to the
applicant.
It follows that this part of the application is incompatible
ratione materiae with the provisons of Article 7 (Art. 7) of the
Convention, and must be rejected under Article 27 para. 2 (Art. 27-2)
of the Convention.
3. The applicant also complains under Article 1 of Protocol No. 1
that the courts wrongly established the facts in his case and so
deprived him of his pension.
Article 1 of Protocol No. 1 (P1-1), insofar as relevant, provides
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 Commission first recalls that the Convention only governs,
for each Contracting Party, facts subsequent to its entry into force
with respect to that Party. The Convention entered into force with
respect to Slovenia on 28 June 1994 which is also the date of its
recognition of the right of individual petition. The applicant`s
complaints of facts that occurred before that date are therefore
outside the competence ratione temporis of the Commission.
The Commission notes that almost all of the decisions in the
applicant`s case were taken before 28 June 1994, apart from the
decision of the Supreme Court of 19 September 1995 rejecting the
applicant`s request for revision as no error of law lay. The Commission
further notes that the applicant lodged a constitutional complaint on
11 December 1995 which is still pending before the Constitutional
Court. The questions thus arise of whether the Commission is competent
ratione temporis to consider this complaint, and whether the applicant
has complied with the rule on exhaustion of domestic remedies set out
in Article 26 (Art. 26) of the Convention.
However, the Commission considers that it is not required to
determine these preliminary issues, as this part of the application is
in any event manifestly ill-founded for the following reasons.
The Commission recalls that in Trickovic v. Slovenia
(No. 39914/98, Dec. 27.5.98), in which the applicant's entitlement to
a military disablement pension was also established by the Military
Social Security Authority in Belgrade after 18 October 1991, the
Commission found that that applicant`s case did not concern the
applicant's entitlement to a pension. Rather, it concerned the refusal
of the Slovenian authorities to grant the applicant an "advance" on
that pension under a regime which was a temporary "stop-gap" measure
aimed at assisting those who had applied for and were entitled to a
federal pension by 18 October 1991, the date on which the federal army
finally withdrew from Slovenia. Noting that it remained open to the
applicant to apply for social security benefits pursuant to the Law on
Social Security for Slovenian Citizens entitled to Pensions granted in
the Republics of Former Yugoslavia, the Commission recalled that the
Convention did not guarantee a right to a specific social welfare
benefit of a particular amount (Muller v. Austria, Comm. Report
1.10.75, D.R. 3, p. 25), and declared the complaint inadmissible.
In the present case, too, the applicant was entitled to apply for
an advance on a military pension, but was only entitled to an advance
if he complied with certain requirements. The domestic courts found
that the applicant did not comply with those requirements. In these
circumstances the refusal of an "advance" on the applicant`s military
pension does not disclose any interference with his right to peaceful
enjoyment of his possessions, set out in Article 1 of Protocol No. 1
(P1-1) to the Convention.
It follows that this part of the application must be rejected as
manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the
convention.
For these reasons, the Commission
DECIDES TO ADJOURN the examination of the applicant's
complaint about the length of proceedings before the
Constitutional Court, and
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy