Lexploria

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

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