Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 39914/98

by Ljuben TRICKOVIC

against Slovenia

The European Commission of Human Rights (First Chamber) sitting

in private on 27 May 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. 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 11 November 1997

by Ljuben TRICKOVIC against Slovenia and registered on 17 February 1998

under file No. 39914/98;

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 1944 in what is now

the Former Yugoslav Republic of Macedonia. He is represented before the

Commission by the Human Rights organisation Helsinki Monitor of

Slovenia. The facts of the application, as submitted by the applicant's

representative, may be summarised as follows.

In the summer of 1991, at the time of the aggression on Slovenia,

the applicant worked as a medical technician in the federal army

hospital in Ljubljana. The federal army withdrew from Slovenia in

October 1991 and the applicant, who had been declared 80% disabled,

decided to retire and apply for an invalidity pension.

On 14 December 1991 the applicant was found to be entitled to

retire on disablement grounds by the Military Social Security Authority

in Belgrade, which paid his pension until April 1992.

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 applied to the federal authorities and

fulfilled the conditions to obtain military pensions by 18 October

1991, the date of withdrawal of the federal army from Slovenia.

The applicant applied for an advance on payment of his military

pension on 5 June 1992. The Pension and Invalidity Insurance Fund

(Skupnost pokojninskega in invalidskega zavarovanja) found on 9 July

1992 that the applicant had no right to such an advance as he applied

for and was found entitled to an invalidity pension only after

18 October 1991. His appeal was refused by the same body on 3 November

1992. The applicant applied for judicial review. The Court of

Associated Labour (Sodisce zdruzenega dela) rejected the application

on 2 March 1993 on the same ground as the previous authority. The

Higher Labour and Social Court (Visje delovno in socialno sodisce) in

Ljubljana likewise rejected it on 7 July 1994 and confirmed the

previous decision.

On 29 August 1994 the applicant lodged a constitutional complaint

before the Constitutional Court alleging breaches of his constitutional

rights to equality before the law, to social security and the

protection of invalids. He claimed that these rights were violated by

the Government decree of 25 January 1992 and confirmed by the decision

of the courts, including the final decision of 7 July 1994 by the

Higher Labour and Social Court.

The Constitutional Court stated that the constitutionality of the

Government decree had already previously been established by it. It

found that there was no dispute as to the applicant`s right to pension

as such, but rather a question over his entitlement to an advance on

payment of that pension. The entitlement to an advance derived from an

"obligation" which the state had voluntarily accepted. Advances were

paid by the state (and not the Slovenian Pension Fund) to former

military personnel who had obtained their right to a pension from the

federal military authorities before the independence of Slovenia

(26 June 1991) or before 18 October 1991, the date from which the

federal army was no longer present in Slovenia. The Constitutional

Court continued that neither the Government decree nor the relevant

decisions in the applicant's case determined the applicant`s right to

a pension. Rather, the decree did no more than provide a temporary,

partial solution to the problems arising from pensions which had been

granted by the federal military authorities. The decree was limited to

providing advances in cases where a person applied for or fulfilled the

conditions for retirement before a certain date. The Constitutional

Court noted that a permanent solution would be found in the new law on

military pension and invalidity rights which was still pending before

the parliament. Until then, all the citizens could benefit from the

social security scheme and, in particular, the applicant could avail

himself of his rights under the Law on Social Security for Slovenian

Citizens entitled to Pensions granted in the Republics of Former

Yugoslavia(1992). The Constitutional Court rejected the applicant`s

complaints as manifestly ill-founded on 17 April 1997. Its decision was

served on the applicant on 17 May 1997.

COMPLAINTS

The applicant invokes Article 3 of the Convention claiming that

the withdrawal of the pension which he had earned may be regarded as

torture and degrading treatment; Article 5 of the Convention, alleging

that withdrawal of pension means that he enjoys no security of the

person; Article 14 of the Convention claiming that he is discriminated

against on the ground of certain dates; Article 1 of Protocol No. 1

claiming that as pension is not paid to him, his right to a peaceful

enjoyment of possessions is violated; Article 6 of the Convention in

that the Constitutional Court took almost three years to decide.

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 Articles 3 and 5

(Art. 3, 5) of the Convention, claiming that it is inhuman to deprive

him of his pension and that he can not enjoy personal security.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of these provisions as, under Article 26 (Art. 26), it may

only deal with the matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

The mere fact that the applicant submitted his case to the

Constitutional Court does not in itself constitute compliance with this

rule. According to the Commission`s constant case-law the applicant

must have raised during the domestic proceedings concerned, at least

in substance, the complaint he is arguing before the Commission (see

No. 10307/83, Dec. 6.3.84, D.R. 37, pp. 113, 120; No. 15669/89,

Dec. 28.6.93, D.R. 75, p. 39).

In this respect, and apart from the absence of any indication

that the "minimum level of severity" at which Article 3 (Art. 3)

applies has been attained, or that the applicant has been detained, the

Commission notes that the applicant did not raise, either in form or

in substance, in the proceedings before the Constitutional Court, the

complaint he now makes before the Commission. There is no reference in

the constitutional complaint to either Article 3 and 5 (Art. 3, 5) of

the Convention or to their national equivalents, Articles 18 and 19 of

the Constitution.

Moreover, an examination of the case as it has been submitted

does not disclose the existence of any special circumstances which

might have absolved the applicant, according to the generally

recognised rules of international law, from raising his complaint in

the proceedings referred to.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must therefore be rejected for non-exhaustion within the

meaning of Article 27 para. 3 (Art. 27-3) of the Convention.

3. The applicant further claims, under Article 1 of Protocol No. 1

(P1-1) of the Convention, taken alone and together with Article 14

(P1-1+14) of the Convention, that his right to peaceful enjoyment of

possessions was violated.

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. ..."

Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this

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 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.

Two decisions were taken in the applicant`s case after 28 June

1994, namely the decisions of the Higher Labour and Social Court in

Ljubljana and of the Constitutional Court. The Higher Social and Labour

Court confirmed the previous decision that the applicant had applied

for and complied with the conditions for retirement out of time, and

the Constitutional Court rejected the applicant`s complaints, finding

no violation of the applicant`s rights to equality before the law or

to social security and the protection of invalids. The Commission

considers that, as these decisions dealt with the substance of the

applicant's claim to an advance on his pension, it was only after

28 June 1994 that the applicant's rights were determined. Accordingly,

the Commission cannot declare this part of the application inadmissible

for incompetence ratione temporis.

The Commission notes that the applicant's entitlement to a

military disablement pension was established by the Military Social

Security Authority in Belgrade on 14 December 1991. The pension was

paid by the Belgrade authorities until April 1992, when, it appears,

payment ceased. The present case does not, however, concern the

applicant's entitlement to that pension, or its non-payment. The

present case concerns the refusal of the Slovenian authorities to grant

the applicant an "advance" on that pension under a regime which, as the

Constitutional Court pointed out, 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 of 18 October 1991 had

been chosen as that was the date on which the federal army withdrew

from Slovenia.

The Commission also notes that the Constitutional Court commented

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, recalling that the Convention does not guarantee

a right to a specific social welfare benefit or its particular amount

(Muller v. Austria, Comm. Report 1.10.75, D.R. 3, p. 25), notes that

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 Courts found, as is clearly the case, 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.

In connection with Article 14 (Art. 14) of the Convention, the

Commission notes that the date of 18 October 1991 was set as cut off

point for entitlement to such an advance as it was the date on which

the federal army finally withdrew from Slovenian territory. Whilst

entitlement to social security benefits may, in certain circumstance,

give rise to issues under Article 14 (Art. 14) of the Convention (see,

for example, Eur. Court HR, Gaygusuz v. Austria judgment of 16

September 1996, Reports 1996-IV), in the present case the legislature

chose to grant a form of interim relief to those who had applied for

a (federal) pension in the period when the federal army was still in

Slovenia. Such a limitation of social security benefits to a clearly

defined category cannot be considered to lack an objective and

reasonable justification within the meaning of the court's case-law on

Article 14 (Art. 14) of the Convention.

It follows that this part of the application is manifestly ill-

founded and must be rejected 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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TRICKOVIC v. SLOVENIA

TRICKOVIC v. SLOVENIA

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