FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43440/98 by Božidar JANKOVIĆ against Croatia

The European Court of Human Rights (Fourth Section) , sitting on 12 October 2000 as a Chamber composed of

Mr G. Ress, President ,

Mr A. Pastor Ridruejo,

Mr V. Butkevych,

Mrs N. Vajić ,

Mr J. Hedigan,

Mr M. Pellonpää,

Mrs S. Botoucharova , judges ,

and Mr V. Berger, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 25 April 1998 and registered on 11 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is a Croatian citizen, born in 1934 and living in Pula , Croatia . He is represented before the Court by Mr Vladimir Rubčić , a lawyer practising in Zagreb ( Croatia ). The respondent Government are represented by their Agent, Mrs Lidija Lukina-Karajković .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant served in the Yugoslav People’s Army and in 1987 retired from service. His military pension was assessed to 85% of his average wage, 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 12 December 1992, the Croatian Social Security Fund, Pula Office, assessed the applicant’s pension, as from 1 October 1992, to 63,22 % of the amount he had received until 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 26 May 1993.

According to the Government, in January 1993 the pensions of the former Yugoslav People’s Army officers have been increased by 15,47 %, and ever since the real amount of those pensions has been 73 % of what they amounted to in December 1991. Furthermore, the Government claim that as from 1 January 1992 the pensions in question had been adjusted in the same way as those of all other categories of pensioners, i.e., to take into account an increase of salaries in Croatia and as from 1 January 1997 to take into account an increase in living expenses.

On 19 November 1993 the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and the Administrative Court violated his constitutional rights. On 22 November 1993 the Constitutional Court informed the applicant that his constitutional complaint had been registered. On 27 November 1995 and 3 February 1997 the applicant requested that the Constitutional Court proceed with his case. He received no reply.

On 17 March 1999 the Constitutional Court dismissed the applicant’s complaint.

B. Relevant domestic law

Article 30 of the 1991 Constitutional Act on the Constitutional Court ( Ustavni zakon o Ustavnom sudu ) provides as follows

“ Odlukom kojom se usvaja tužba ukida se osporeni akt kojim je povrijeđeno ustavno pravo i vraća nadležnom organu na ponovni postupak.”

“By the decision granting a claim, the impugned decision that violated a constitutional right is quashed and the case is remitted to the competent body for retrial.”

COMPLAINTS

1. 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.

2. 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.”

The Government claim that until 31 December 1972 pensions of Yugoslav People’s Army officers had been regulated at the level of the republics of the then Socialist Federal Republic of Yugoslavia, while from 1 January 1973 until the dissolution of the former Yugoslavia, that matter was regulated at the federal level. That means that until 31 December 1972 contributions were paid to funds of the constituent republics, whereas from 1 January 1973 until the dissolution of the former Yugoslavia contributions were paid to a single federal fund in Belgrade .

The Government also claim that until 1991 pensioners who had been Yugoslav People’s Army officers were in a highly privileged position compared to other pensioners, which only reflected the privileged status of the members of the Yugoslav People’s Army in general. In addition, the former Yugoslav People’s Army officers’ pensions were increased for 40 % only as late as in December 1991, i.e. at a time when the dissolution of the former State was de facto already achieved.

According to the Government the highest pension paid from the Croatian Pension and Invalidity Insurance Fund in December 1991 amounted to 63,22 % of the highest pension paid at the same time to former Yugoslav People’s Army officers. Therefore, it was decided that that percentage would serve as the basis for assessing all pensions of that category of pensioners. According to the Government, however, the newly assessed amount of pensions of the former Yugoslav people’s Army officers continued to include privileges such as those allowed to Second World War partisans; a military waiting of their reckonable years of service; and an annual adjustment of their pensions according to the salary of active officers of the relevant rank. The base figure for the assessment of their pensions was their salary of December of the year preceding their retirement.

The Government further argue that, although pensions of former Yugoslav People’s Army officers have been reduced, their average pension is still higher than that of some other categories of pensioners. For comparison, the Government have submitted that the average pension of ordinary workers ranges from 1,134.33 to 1,192.00 Croatian Kunas per month, that of some self-employed persons from 890.98 to 993.38 Croatian Kunas , that of private farmers from 328.18 to 436.91 Croatian Kunas , while the average pension of the former Yugoslav People’s Army officers amounts to 1,471.74 Croatian Kunas per month.

According to the applicant the average pension of the Croatian Army officers is 5,100.00 Croatian Kunas per month, while for other categories of pensioners it is 1,100.00 Croatian Kunas . His own pension is 1,685.00 Croatian Kunas per month.

The applicant further argues that the decrease of military pensions of the former Yugoslav People’s Army officers was motivated by the Government’s intention to discriminate against that category of pensioners.

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 1996-IV, p. 1141, § 36).

With respect to the present case, the Court observes that the present application 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, 2000).

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 (Eur. Comm. HR, no. 5849/72, Müller v. Austria Comm. Report, 1.10.1975, D.R. 3, p. 25; no. 10671/83, Dec. 4.3. 1985, D.R. 42, p. 229; Storkiewicz v. Poland (dec.), no 39860/98, ECHR 1999, and Domalewski v. Poland, cited above).

The Court further notes 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).

In the present case, the applicant’s pension has been reduced, but it cannot be said that it is inferior to pensions of all other categories of pensioners in Croatia . The applicant has only lost certain privileges that were formerly granted to him as a military official of a state that does no longer exist.

In this respect, the Court considers that the reduction of the former Yugoslav People’s Army officers pensions by Croatian authorities represents a method of integrating those pensions into the general pension system of Croatia (see, mutatis mutandis, Schwengel v. Germany (dec.), no. 52442, ECHR 2000). Furthermore, the Court considers that States enjoy quite a wide margin of appreciation in regulating their social policy. This also applies in the specific context of the dissolution of the former Yugoslavia and with regard to persons who were 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, has not been divided among the successor States. The Court notes, in that respect, that the Croatian authorities accepted to pay pensions to former Yugoslav People’s Army officers and adjusted these pensions with those of other pensioners so that the average pension of an Yugoslav People’s Army officer is still slightly higher than the average pension in Croatia. The fact that the pension of a Croatian Army officer is significantly higher, in the Court’s view, also falls within the margin of appreciation of the state and its freedom to grant privileges to those categories of citizens that it deems appropriate, in this case members of its own Army.

The Court observes that in the present case, by virtue of the Social Security Fund, Pula Office decision of 12 December 1992, the applicant lost a certain percentage of his pension. The applicant did, however, retain all the rights attached to his ordinary pension under the general social insurance system. Consequently, the applicant’s pecuniary rights stemming from the contributions paid into his pension scheme remained the same (see, mutatis mutandis , Domalewski v. Poland , cited above).

In these circumstances, the Court does not consider that the applicant’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 did not result in the essence of his pension rights being impaired.

Nor does the Court consider that divesting the applicant of a part of his pension amounted to discrimination contrary to Article 14 of the Convention.

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 submitted that the part of the application relating to the events which took place prior to 5 November 1997, when the Convention entered into force in respect of Croatia , was outside the Court’s competence ratione temporis .

In this connection, the Court recalls that Croatia recognised the competence of the European Court of Human Rights 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”. According to Article 6 of Protocol No. 11 this limitation shall remain valid for the jurisdiction of the Court under that Protocol. It follows that the period to be taken into consideration by the Court starts on 5 November 1997. In order to determine the reasonableness of the length of time in question the Court will have regard to the state of the case on that date (see, among other authorities, the Podbielski v. Poland judgment of 30 October 1998, Reports 1998-VII, p. 3395, § 31).

The Government further contests the applicability of Article 6 of the Convention to the Constitutional Court proceedings arguing that, even having in mind the European Court of Human Rights case law, the Constitutional Court of Croatia is not an ordinary court and that there is no provision in the Convention demanding that court to deliver its decision within a given time limit.

The Court recalls once again that it is fully aware of the special role and status of a Constitutional Court, whose task is to ensure that the legislative, executive and judicial authorities comply with the Constitution and which, in those States that have made provision for a right of individual petition, affords additional legal protection to citizens at national level in respect of their fundamental rights guaranteed by the Constitution (see the Süßmann v. Germany judgment of 16 September 1996, Reports 1996-IV, p. 1171, § 37).

The Court also recalls that it has had to examine the question of the applicability of Article 6 § 1 of the Convention to proceedings in a Constitutional Court in a number of cases and had held that Constitutional Court proceedings do not in principle fall outside the scope of Article 6 § 1 (see the Süßmann judgment, cited above, § 39).

The Court also notes that the present case concerns the length only of proceedings in a Constitutional Court .

Therefore, the Court recalls that according to its well-established case-law on this issue the relevant test in determining whether proceedings come within the scope of Article 6 § 1 of the Convention, even if they are conducted before a Constitutional Court, is whether their outcome is decisive for the determination of the applicant’s civil rights and obligations (see the Süßmann judgment, cited above, § 41, and the Pammel and Probstmeier v. Germany judgments of 1 July 1997, Reports 1997-IV, p. 1109, § 53, and p. 1135, § 48, respectively).

The dispute as to the amount of the applicant’s pension entitlement was of a pecuniary nature and undeniably concerned a civil right within the meaning of Article 6 § 1 of the Convention (see the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 17, § 46; the Massa v. Italy judgment of 24 August 1993, Series A no. 265-B, p. 20, § 26, and the Süßmann judgment, cited above). Following the decision of the Administrative Court , the only avenue through which the applicant could pursue further determination of that dispute was by means of a constitutional complaint whereby he alleged a breach of his constitutional right to property and not to be discriminated against. The Constitutional proceedings therefore concerned a dispute over a civil right.

In the event of a successful appeal, the Constitutional Court does not confine itself to identifying the provision of the Croatian Constitution that has been breached and indicating the public authority responsible; it quashes the impugned decision and remits the case for retrial (Article 30 of the 1991 Constitutional Act on the Constitutional Court).

In the present case, had the Constitutional Court found that the decisions to decrease the applicant’s pension infringed his constitutional right to property and/or his right not to be discriminated against, the applicant would have been able to reinstitute proceedings before the relevant administrative bodies in order to have the amount of his pension assessed in view of the Constitutional Court’s decision. The Constitutional Court proceedings were therefore directly decisive for a dispute overt the applicant’s civil right (see, mutatis mutandis, the Süßmann judgment, cited above, p. 1172, § 42-44).

Furthermore, 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 applicant’s case formed part of a large number of cases concerning the decrease of former Yugoslav People’s Army officers’ pensions. They further argue that there had been several changes in the laws regulating pensions of the former Yugoslav Army officers and that all of those laws had been contested before the Constitutional Court by many applicants. The Government contend 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 also 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 has been 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 17 March 1999 the applicant’s complaint was dismissed.

The applicant contends that the length of the Constitutional Court proceedings of more than five years cannot be considered reasonable within the meaning of Article 6 § 1 of the Convention.

The reasonableness of the length of these 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 applicants’ conduct and that of the competent authorities, and the importance of what was at stake for the applicant in the litigation (see the Süßmann judgment, cited above, p. 1172-73, § 48; the Pammel and Probstmeier judgments, cited above, §§ 60 and 55, respectively; and Gast and Popp v. Germany , no 29357/95, § 70, ECHR 2000).

In this respect the Court firstly notes 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, four months and twelve days. At the moment of the ratification the proceedings had been pending for three years, eleven months and sixteen days.

The applicants’ 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 , when so applied it cannot be construed in the same way as for an ordinary court. Its role as guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes 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, and Gast and Popp v. Germany , cited above, § 75).

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, and Gast and Popp v. Germany , cited above, § 76).

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, four months and twelve 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).

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Georg Ress Registrar President