Communicated on 9 June 2016
FOURTH SECTION
Applications nos 57101/10 and 57123/10
Aranđel RIBAĆ against Slovenia
and Milosav ALEKSIĆ against Slovenia
lodged on 29 September 2010 and 1 October 2010 respectively
STATEMENT OF FACTS
The applicant in the first case, Mr Aranđel Ribać, is a Slovenian national, who was born in 1942 and lives in Maribor.
The applicant in the second case, Mr Milosav Aleksić, is a Slovenian national, who was born in 1944 and lives in Ljubljana.
Both applicants are represented before the Court by Mr M. Krivic, a lawyer from Medvode.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Application no. 57101/10, Ribać v. Slovenia
The first applicant was a non-commissioned officer of the former Yugoslav People’s Army (hereinafter: the “YPA”) who had been living in Slovenia since 1964. In 1969 he married a Slovenian and they had two children. The first applicant retired on 13 November 1991 and on 18 October 1992 he applied for a military pension in Slovenia. By a decision of 5 May 1993, the Institute for Pension and Disability Insurance of Slovenia (hereinafter: “the Institute”) granted the first applicant advance payments of a military pension as from 1 November 1991, under Sections 1 and 2 of the Advance Payment of Military Pensions Ordinance. The Institute held that the first applicant had been a permanent resident in Slovenia since 1 April 1981 and on 18 October 1991 he had fulfilled the conditions for pension entitlement under the rules governing the pension and invalidity insurance of military personnel.
On 24 December 1991 the first applicant applied for Slovenian citizenship under Section 40 of the Citizenship Act. By a decision of 11 July 1992 the Ministry of Interior dismissed his application. The applicant lodged further appeals against this decision which were dismissed at last instance by the Constitutional Court on 13 October 2005.
Meanwhile, on 13 October 1998, after the Act on the Rights Stemming from the Pension and Disability Insurance of Former Military Personnel entered into force (hereinafter “the 1998 Act”), the Institute issued a decision suspending the first applicant’s pension as from 31 October 1998. The Institute held that since the first applicant had been in active military service in the YPA from 25 June 1991 to 18 July 1991 and from 18 July 1991 he had been on leave, he did not fulfil the statutory conditions for converting the advance payments of pension to the military pension under the fourth subsection of Section 2 (1) of the 1998 Act.
On 9 November 1998 the first applicant appealed, complaining that at the relevant time he had not been on leave, but he had been put on standby due to retirement. On 30 September 2002 the Institute dismissed the first applicant’s appeal, holding that the first applicant could not be regarded as beneficiary under Section 2 (1) of the 1998 Act as he had neither applied for the military pension up to 25 June 1991, nor did he have Slovenian citizenship.
On 3 November 2002 the first applicant requested the annulment of the abovementioned decisions before the Ljubljana Labour and Social Court. Referring to Section 13 of the Constitutional Law relating to the Fundamental Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia (hereinafter “the 1991 Constitutional Law”), the first applicant maintained that he should have been treated in the same way as Slovenian citizens as in 1991 he was in fact residing in Slovenia. The first applicant further referred to the commentary of the 1998 Act published on 14 October 1998 according to which leave had to be treated in the same way as being put on standby. In the first applicant’s view, beneficiaries who obtained the right to advance payments on the ground that they had been on leave after 18 July 1991 should have also been granted the rights under the 1998 Act.
Meanwhile, on 1 April 2003 the first applicant acquired citizenship by naturalisation under Section 19 of the amended Citizenship Act read in conjunction with Section 10 (1) of the Citizenship Act. On 4 June 2003 the Institute granted the first applicant a military pension as from 1 April 2003.
On 13 January 2006 the Ljubljana Labour and Social Court dismissed the first applicant’s claim for the annulment of the Institute’s decisions concerning the suspension of his military pension. The court pointed out that the first applicant’s situation had to be assessed with regard to three categories of beneficiaries referred to in the 1998 Act: (a) Slovenian nationals with permanent residence in the Republic of Slovenia who up to 25 June 1991 had claimed a pension under the military rules (the first subsection of Section 2 (1) of the 1998 Act); (b) foreigners with a permanent residence permit or residing in the Republic of Slovenia without interruption from 25 June 1991, provided that up to 25 June 1991 they had claimed a pension under the military rules and they could not obtain them under the rules of the country of which they were nationals (the second subsection of Section 2 (1) of the 1998 Act); and (c) Slovenian nationals with permanent residence in the Republic of Slovenia who after 25 June 1991 were in active military service in the YPA provided, inter alia, that by order of a competent authority their service has been terminated due to retirement, or they have stayed in service in the YPA with the consent of the authorities of the Republic of Slovenia competent for defence matters and they have submitted, by 18 October 1991, a request for retirement and have fulfilled the conditions for entitlement to a pension under the military rules (the forth subsection of Section 2 (1) of the 1998 Act). The court held that the second subsection of Section 2 (1) of the 1998 Act was applicable to the first applicant as at the time of issue of the contested decisions he was a foreigner and as such he had to claim pension up to 25 June 1991.
On 13 February 2006 the first applicant appealed, complaining that the first-instance court did not provide any reasoning as to the alleged discrimination against Slovenian citizens. The first applicant pointed out that the main issue in the dispute was whether the advance payments of his pension could lawfully be stopped in 1998.
On 21 March 2007 the Higher Labour and Social Court dismissed the appeal, holding that after the 1998 Act’s entry into force the first applicant’s advance payments of a military pension had to be converted under the 1998 Act and they ceased to be payable if the beneficiary did not fulfil the new statutory conditions. The provision of the second subsection of Section 2 (1) of the 1998 Act was applicable to the first applicant’s situation as at the relevant time he was a foreigner who had to apply for pension up to 25 June 1991. The other provisions of Section 2 (1) of the 1998 Act were applicable only to Slovenian citizens and, thus, the first applicant, as a foreigner at the relevant time, could not rely upon them.
On 25 April 2007 the first applicant lodged an appeal on points of law, reiterating his previous complaints. On 23 March 2009 the Supreme Court dismissed the appeal on points of law, holding that the first applicant had not satisfied the statutory requirements of Section 2 (1) of the 1998 Act for the granting of a military pension, having applied for the pension on 16 July 1991 and having acquired the Slovenian citizenship only on 1 April 2003.
On 14 June 2009 the first applicant lodged a constitutional complaint reiterating his previous complaint as to the discrimination by reason of citizenship. On 24 March 2010 the Constitutional Court dismissed the constitutional complaint, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant. On 30 March 2010 the Constitutional Court’s decision was served on the first applicant.
2. Application no.57123/10, Aleksić v. Slovenia
The second applicant was an officer of the YPA. He had been living in Slovenia since 1977. On 23 September 1991 the second applicant requested the Belgrade Institute for Social Insurance of Military Insured Persons (“the Belgrade Institute”) to be granted an early pension. On 25 October 1991 he left Slovenia with the YPA. On 29 November 1991 he was granted the early pension and he was put on standby. On 21 December 1991 he returned to Slovenia, where his family resided. On 4 January 1992 he left Slovenia once again. On 29 April 1992 he returned to Slovenia where he has continuously been residing to date. By a decision of 16 May 1992, the Belgrade Institute granted the second applicant a military pension. However, the Yugoslav (now Serbian) pension fund had not made any payment of the military pension.
On an unspecified date the second applicant applied for Slovenian citizenship in accordance with Section 40 of the Citizenship Act. He further applied for a Slovenian military pension. According to the second applicant, his application for citizenship had been dismissed due to his short absence from Slovenia. Consequently, he was erased from the Register of Permanent Residents and he was denied a military pension.
On 21 January 2003 the Ministry of Interior granted Slovenian citizenship by naturalisation to the second applicant in accordance with Section 19 of the amended Citizenship Act read in conjunction with Section 10 (1) of the Citizenship Act. On 4 February 2003 this decision was served on the second applicant.
On 10 February 2003 the second applicant reapplied for military pension. On 19 May 2003 the Institute for Pension and Disability Insurance of Slovenia granted him the military pension as from 4 February 2003.
On 6 June 2003 the second applicant appealed, complaining that the pension should have been granted as from 1 May 1992. On 3 November 2003 the Institute upheld the first-instance decision, holding that despite having fulfilled the conditions for old-age pension under the general rules and under the fourth subsection of Section 2 (1) of the 1998 Act, the second applicant was entitled to a military pension only as from 4 February 2003 when he acquired Slovenian citizenship, a statutory condition for granting the pension.
On 4 December 2003 the second applicant contested the Institute’s decisions before the Ljubljana Labour and Social Court. He maintained that having fulfilled the conditions entitling him to a pension on 18 October 1991, he had the same rights and duties as other citizens of the Republic of Slovenia with regard to entitlement to a pension under Section 13 of the Constitutional Law and Section 40 of the Citizenship of the Republic of Slovenia Act.
On 18 January 2006 the Ljubljana Labour and Social Court dismissed the second applicant’s claim. It held that the fourth subsection of Section 2 (1) of the 1998 Act was applicable to the second applicant’s case, whereby he was entitled to a pension only as from 4 February 2003 when he acquired Slovenian citizenship. The court pointed out that the 1998 Act contained no legal basis for granting the military pension from the date of retirement with the military insurance institution. Finally, the court noted that the provision of Section 13 of the 1991 Constitutional Law was applicable only to persons who had acquired citizenship under the conditions set out in Section 40 of the Citizenship Act.
On 28 February 2006 the second applicant appealed. In his view the interpretation of the first-instance court was discriminatory. He acquired Slovenian citizenship on the basis of Section 19 of the amended Citizenship Act and not under Section 10 of the Citizenship Act. Further, Section 13 of the 1991 Constitutional Law was applicable both to persons who have acquired citizenship under Section 40 of the Citizenship Act and those who have acquired it under Section 19 of the amended Citizenship Act.
On 22 February 2007 the Higher Labour and Social Court dismissed the appeal. It pointed out that, with respect to the date from which the military pension should be paid, Section 15 of the 1998 Act provided for two situations: as a general rule the military pension should have been paid from the first day of the month following the submission of the request and for a maximum period of six months in arrears, though not beyond the entry into force of the 1998 Act; in case of persons who had acquired citizenship under Section 40 of the Citizenship Act, the military pension could be paid from 18 October 1991. The court observed that the second applicant had acquired citizenship under Section 10 of the Citizenship Act on 4 February 2003 and on this date he had fulfilled the conditions for a military pension under the fourth subsection of Section 2 (1) of the 1998 Act. The court reiterated that Section 13 of the 1991 Constitutional Law was applicable only to persons having acquired citizenship under Section 40 of the Citizenship Act.
On 22 April 2007 the second applicant lodged an appeal on points of law. On 23 March 2009 the Supreme Court dismissed the appeal, reiterating that the second applicant had acquired Slovenian citizenship by naturalisation under Section 19 of the Act Amending the Citizenship of the Republic of Slovenia Act taken in conjunction with Section 10 of the Citizenship Act. The citizenship being one of requirements for granting a military pension, the second applicant was entitled to a military pension only from the date of service of the decision on the acquisition of citizenship. Derogation from that rule was possible, in accordance with Section 15 of the 1998 Act, only in cases where citizenship had been acquired under Section 40 of the Citizenship Act.
On 26 November 2009 the second applicant lodged a constitutional complaint. On 30 March 2010 the Constitutional Court dismissed the constitutional complaint, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant. On 1 April 2010 the Constitutional Court’s decision was served on the second applicant.
Meanwhile, on 23 September 2009 the domestic authorities issued a decision establishing that the second applicant had been living on the territory of the Republic of Slovenia continuously from the date of the erasure of his name from the of Register of Permanent Residents.
B. Relevant domestic law
The military personnel of the former SFRY were insured with a special insurance fund in Belgrade which was responsible for the collection of contributions and the payment of military pensions. After the dissolution of the former SFRY each Successor State assumed responsibility for the payment of pensions in accordance with the principle of succession to be regulated by the Agreement on Succession Issues. In October 1991 the newly established Federal Republic of Yugoslavia stopped paying the military pensions to former members of the Yugoslav Army residing in Slovenia. Consequently, in 1991 the Government of the Republic of Slovenia issued the Advance Payment of Military Pensions Ordinance (Official Gazette, no. 4/1992, in force from 31 October 1991 to 10 November 1994) which regulated, on a temporary basis, the payment of military pensions to military personnel of the former YPA residing in the territory of the Republic of Slovenia.
In 1998 the Act on the Rights Stemming from the Pension and Disability Insurance of Former Military Personnel was enacted, containing a comprehensive pension scheme for the former SFRY military personnel who were receiving or were entitled to receive old-age pension on the basis of insurance under the regulations of the former SFRY. It states, in so far as is relevant:
Section 2
“The beneficiaries under this Act are:
- nationals of the Republic of Slovenia residing in the Republic of Slovenia who up to and including 25 June 1991 have claimed pension or other benefits under the military rules;
- persons who have not applied for citizenship of the Republic of Slovenia or their application for citizenship had been rejected (hereinafter: foreigners) with permanent residence or residing in the Republic of Slovenia without interruption from and including 25 June 1991, provided that up to and including 25 June 1991 they had claimed pension or other benefits under the military rules and they cannot obtain them under the rules of the country of which they are nationals;
- active military personnel of the former YPA who joined the Territorial Defence of the Republic of Slovenia and who up to and including 1 February 1992 had fulfilled the conditions for entitlement to a pension under the military rules;
- nationals of the Republic of Slovenia residing in the Republic of Slovenia who after 25 June 1991 were in active military service in the YPA provided that their active service in the YPA had ceased before 18 July 1991, or from 18 July 1991 to the termination of the active service they were still suspended, in prison, on sick leave, or at disposal, or by order of a competent authority their service has been terminated due to retirement, or they have stayed in service in the YPA with the consent of the authorities of the Republic of Slovenia competent for defence matters and they have submitted, by 18 October 1991, a request for retirement and have fulfilled the conditions for entitlement to an old-age, early or survivor’s pension under the military rules, or they have submitted, by 18 October 1991, a request for recognition of rights stemming from the invalidity insurance on the basis of which the competent military authority had issued a decision determining their incapacity to perform military service, or the invalidity commission had determined invalidity of first category under the general rules on the basis of an opinion and assessment.
...”
Section 15
(The commencement of payment of the benefits under this Act)
“Old-age pension, early pension ... under this Act shall be paid from the first day of the month following the submission of the request and for a maximum period of six months back, though not beyond the entry into force of this Act.
Irrespective of the provision of the previous paragraph, beneficiaries who acquired citizenship under Section 40 of the Citizenship of the Republic of Slovenia Act (Official Gazette, nos. 1/91-I, 30/91-I, 38/92, 13/94 in 96/02) shall be, at their request, granted and paid old-age, early ... pension for which they had fulfilled the conditions laid down in Section 2(4) of this Act from the date of fulfilment of the conditions, if they were not insured, or from the first day of the month following the termination of the active military service or insurance with the Institute, though not beyond 18 October 1991 ...”
On 25 June 1991 the National Assembly of the Republic of Slovenia enacted the Constitutional Act Implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia (Official Gazette of the RS no. 1/91) which in Article 13 provides that citizens of the other republics of the former SFRY who on 23 December 1990 were registered as permanent residents in the Republic of Slovenia and reside therein shall have the same rights and duties as other citizens of the Republic of Slovenia until they acquire citizenship of Slovenia under Section 40 of the Citizenship Act or until the expiry of the time-limit set forth in section 81 of the Aliens Act.
Under Section 10 (1) of the Citizenship Act (Official Gazette no. 1/91-I, 30/91 and 96/2002 of 1991 and 2002) governs the acquisition of citizenship by naturalisation. Section 40 of the same Act provides that citizens of the former SFRY who on 23 December 1990, the day the plebiscite on the independence of the Republic of Slovenia was held, were registered as permanent residents in the Republic of Slovenia and reside therein shall acquire citizenship of the Republic of Slovenia if they lodge an application with the internal affairs authority of the municipality where they live within six months after the present Act enters into force.. According to Section 15 of the same Act, any person who acquires the citizenship of the Republic of Slovenia by naturalisation or under Section 40 of this Act shall become a citizen of the Republic of Slovenia on the date on which the decision on the acquisition of citizenship of the Republic of Slovenia is notified to him.
On 14 November 2002 the Citizenship of the Republic of Slovenia Act was amended (Official Gazette, no. 96/02 of 2002). Section 19 of that Act provides that an adult who on 23 December 1990 was registered as a permanent resident on the territory of the Republic of Slovenia and has lived there uninterruptedly since that date, may apply for citizenship of the Republic of Slovenia within one year after the amended Citizenship Act enters into force if he or she meets certain requirements set forth in the Section 10(1) of that Act.
On 29 June 2001 the republics of the former SFRY signed the Agreement on Succession Issues (“the Succession Agreement”) which came into force on 2 June 2004. It establishes the principle that the Successor State is responsible for the payment of military pensions to its own citizens (Article 2 of Annex E). It further provides for the possibility to solve issues concerning the payment of pensions by concluding bilateral agreements between Successor States (Article 3 of Annex E).
COMPLAINT
The applicants complain under Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention that they had been denied the right to a pension on the ground that they did not have Slovenian citizenship, as provided by Section 2 of the 1998 Act.
QUESTION TO THE PARTIES
Have the applicants suffered discrimination on the ground of their nationality, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1, by reason of the application of the provisions of the 1998 Act on the Rights Stemming from the Pension and Disability Insurance of Former Military Personnel, which impose, inter alia, the citizenship requirement for the granting of the applicants’ military pension (see, mutatis mutandis, Andrejeva v. Latvia ([GC], no. 55707/00, ECHR 2009; and Gaygusuz v. Austria, 16 September 1996, Reports of Judgments and Decisions 1996‑IV)?
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