FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48788/99 by Dragomir HADŽIĆ against Croatia

The European Court of Human Rights (Fourth Section), sitting on 13 September 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr M. Pellonpää , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 17 December 1998 and registered on 14 June 1999,

Having regard to the Chamber’s partial decision of 7 December 2000,

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, Dragomir Hadžić, is a Croatian citizen, born in 1931 and living in Zagreb . He is represented before the Court by Mr Milorad Lukač, a lawyer practising in Zagreb. The respondent Government are represented by their Agent Ms 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 as a dentist in the Yugoslav People’s Army (YPA) from 1959 to 1991. His post was in Zagreb , Croatia.

By an order of the Commander of the Fifth Military Zone of the Socialist Federal Republic of Yugoslavia of 4 June 1991 it was decided that, due to his age, the applicant’s military service would end on 31 December 1991. Subsequently, by a decision of the Belgrade Military Social Security Fund ( Zavod za socijalno osiguranje vojnih osiguranika ) of 25 December 1991, the applicant’s right to an old-age pension was recognised as from 1 January 1992.

The applicant’s pension was subsequently paid from the Yugoslav Federal Military Social Security Fund in Belgrade until 31 December 1993.

According to the Government the payments stopped on that date at the applicant’s personal request, as he had decided to file an application for a pension in Croatia.

According to the applicant on 4 January 1994 he obtained Croatian citizenship and, consequently, only then fulfilled the requirements to apply for a pension in Croatia.

On 4 January 1994 the applicant filed an application for an old-age pension in Croatia. As a reason for this request the applicant submitted that he had previously fulfilled the conditions for an old-age pension and also obtained the Croatian citizenship.

By a decision of 25 February 1994 the Croatian Social Security Fund - Zagreb Office ( Republički fond mirovinskog i invalidskog osiguranja radnika Hrvatske - Područni ured Zagreb ) rejected his request, stating that the applicant did not fulfil the requirements for a pension as he had failed to join the Croatian army prior to 31 December 1991.

The applicant unsuccessfully appealed against that decision and after his appeal was rejected on 5 April 1994, he instituted proceedings before the Administrative Court ( Upravni sud Republike Hrvatske ). He maintained that the decision to reject his request for an old-age pension had not been adequately reasoned and had failed to state laws on which it had been based. He maintained also that the law requesting the former YPA officers to make themselves available for the service in the Croatian army prior to 31 December 1991 had been enacted on 24 July 1992, after he had already fulfilled the conditions for an old-age pension. Furthermore, as that law had been enacted only in 1992 he could not have known the above requirement prior to his retirement form service.

On 22 December 1994 the Administrative Court rejected his claim. It noted that the applicant’s active military service in the YPA had come to an end on 31 December 1991 and that at that moment he fulfilled the requirements for the old-age pension according to the Yugoslav Federal law. It found furthermore that the applicant had failed to make himself available for service in the Croatian army prior to 31 December 1991, as prescribed by the 1993 Former Yugoslav People’s Army Officers’ Pensions Act. Therefore, he had failed to fulfil the requirements for recognition of his pension rights in Croatia, as prescribed by law.

On 1 March 1995 the applicant lodged a constitutional complaint claiming that his right to property was violated by the Administrative Court’s decision in so far as his right to pension in Croatia was denied. He argued in particular that the 1993 Former Yugoslav People’s Army Officers’ Pensions Act had not required that he join the Croatian army.

On 30 June 1998 the Constitutional Court ( Ustavni sud Republike Hrvatske ) rejected the applicant’s complaint. It followed the reasoning set out in the Administrative Court’s decision of 22 December 1994 and found that the applicant’s constitutional rights had not been violated.

B. Relevant domestic law

The relevant parts of the Former Yugoslav People’s Army Officers’ Pensions Act (1993 - Zakon o ostvarivanju prava iz mirovnskog i invalidskog osigurnja pripadnika bivše JNA , Official Gazette no. 96/1993) read as follows:

Section 4

“A person whose status as an active officer in the former YPA in the territory of the Republic of Croatia ended prior to 31 December 1991, and who had not until that date obtained rights from pension and invalidity insurance may obtain such rights if he fulfils the conditions required of army personnel in order to obtain rights concerning pension and invalidity insurance in accordance with the Military Personnel Pensions Act ( Zakon o mirovinskom i invalidskom osiguranju vojnih osiguranika – Official Gazette no. 53/91, 73/91, 18/92 and 71/92) and if:

...

– he had made himself available for the service in the Croatian army prior to 31 December 1991...”

By its decision of 16 October 1991 the Croatian Government, inter alia , guranteed to the Yugoslav People’s Army officers and soldiers who voluntarily left the YPA troops based on Croatian territory prior to 10 November 1991 at midnight the following: personal safety, the same status as they had in the YPA and an organised and unhindered possibility to leave the territory of Croatia for those who wished to do so.

COMPLAINT

The applicant complains under Article 1 of Protocol No. 1 that the refusal of the Croatian authorities to recognise his right to a pension violates his property rights.

THE LAW

The applicant complains that the refusal of the Croatian authorities to recognise his right to a pension under Croatian law although he has fulfilled the conditions for the old-age pension violates his right to property. He invokes Article 1 of Protocol No. 1 which 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.”

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

In this connection, the Court recalls that Croatia recognised the competence of the Court 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.” It follows that the period to be taken into consideration by the Court starts on 5 November 1997.

As regards the facts of the present case the Court recalls that the applicant’s application for a pension was rejected already on 25 February 1994. However, he challenged before the Constitutional Court the decisions taken referring in substance to the matters which are now before the Court. The Constitutional Court did not decide in the applicant’s case before June 1998, i.e. well after the Convention had entered into force in respect of Croatia. In these circumstances the Court does not find that it is prevented ratione temporis from examining the complaints made and accordingly dismisses the Government’s objection in this respect.

2. As regards the substance of the complaint under Article 1 of Protocol No. 1, the Government invite the Court to declare the application inadmissible as being manifestly ill-founded. They contend that the question of the applicant’s pension has to be considered in the specific context of the dissolution of the former Yugoslavia and 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.

In addition, the applicant’s pension was recognised and assessed by the Belgrade Military Social Security Fund, as from 1 January 1992. The applicant had received the payments from that Fund until 31 December 1993, when they stopped upon the applicant’s personal request, as he decided to apply for a pension in Croatia. As there are no bilateral agreements in respect of the pension system, between Yugoslavia and Croatia, the Croatian authorities have no obligation to continue the payments of the applicant’s pension.

Furthermore, the Croatian authorities denied the applicant’s request for a pension as he failed to fulfil the requirements set out in the Former Yugoslav People’s Army Officers’ Pensions Act.

The applicant claims that there was no obligation on his part to make himself available for the service in the Croatian army prior to 31 December 1991. In this connection he submits that the Government’s decision of 16 October 1991 has never been published in the Official Gazette ( Narodne Novine ) and that that decision had not called upon the Yugoslav People’s Army officers to make themselves available for the service in the Croatian army prior to 31 December 1991. He claims further that no such Act has ever been officially issued.

The Court recalls that although no right to a pension as such is guaranteed by the Convention, the payments of contributions to a social security fund may create a property right protected by Article 1 of Protocol No. 1 (see T. v. Sweden, application no. 10671/83, Commission decision of 4 March 1985, Decisions and Reports (DR) 42, pp. 229, 232, and Anna Claes v. Belgium, application no. 11285/84, Commission decision of 7 December 1987, DR 54, pp. 88, 94). Moreover, the Court, in the Gaygusuz case, referring to the pecuniary nature of the entitlement to a given social security benefit, found that Article 1 of Protocol No. 1 was applicable without it being necessary to rely solely on the link between entitlement and the obligation to "pay taxes or other contributions" (see Gaygusuz v. Austria judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1142, § 41, and also Walden v. Liechtenstein (dec.), no. 33916/96, 16 March 2000, unpublished). In the present case, the applicant claims that he had a pecuniary right to an old-age pension under Croatian law. Thus, the applicant’s right to the old age pension at issue falls within the ambit of Article 1 of Protocol No. 1. However, it is also necessary that the applicant fulfils the conditions fixed by domestic law (see Bellet v. France (dec.), no. 40832/98, 27 April 1999, unpublished).

The Court recalls that States enjoy quite a wide margin of appreciation in regulating its social policy, including their right to independently regulate their pension system (see Janković v. Croatia (dec.), no 43440/98, ECHR 2000-X).

The Court observes that in the present case it is not disputed between the parties that the applicant did not join the Croatian Army prior to 31 December 1991. The Court observes further that the applicant’s status as an active officer in the YPA ended on 31 December 1991, and that he had not prior to that date obtained rights from any pension and invalidity insurance. Thus, as held by the national authorities, he fell within the category of pensioners from Section 4 of the Former Yugoslav People’s Army Officers’ Pensions Act.

As one of the conditions for such persons to have a right to a pension under Croatian law was that they had made themselves available for the service in the Croatian army prior to 31 December 1991 and as the applicant failed to do so, he failed to fulfil the conditions for a pension as prescribed by domestic law.

Furthermore, the Court notes that the applicant’s pension was recognised and assessed by the Belgrade Military Social Security Fund and paid to him until December 1993. The payments ceased at the applicant’s own request, as, on 4 January 1994 he obtained the Croatian citizenship, and, therefore, deemed that he was entitled for pension in Croatia.

However, the fact that the applicant obtained the Croatian citizenship did not entitle him to a pension in Croatia, nor did he fulfil the requirements for a pension in that country. Accordingly, there has been no interference with the applicant’s property rights within the meaning of Article 1 of Protocol No. 1 to the Convention.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President