THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66907/01 by Tomislav Kirov DOCEVSKI against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section), sitting on 10 November 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr L. Caflisch , Mrs M. Tsatsa-Nikolovska , Mr V. Zagrebelsky , Mrs A. Gyulumyan , Ms I. Ziemele, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 8 December 2000 ,

Having regard to the partial decision of 22 November 2001 ,

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, Mr Tomislav Kirov Docevski, is a Macedonian national who was born in 1933 and lives in Kumanovo, the former Yugoslav Republic of Macedonia .

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

On 16 November 1994 the applicant retired. On 20 December 1994 the Pension and Disability Insurance Fund (“the Fund”) determined the amount of his pension.

On 31 October 1996 the applicant asked the Fund to open new proceedings concerning the calculation of the basis of the amount of his pension on account of newly discovered evidence. He argued that the Constitutional Court had meanwhile repealed some provisions in the Law on pension and disability insurance (“the Law”) and had created conditions for a higher calculation of his pension.

On 25 November 1996 the Fund dismissed his request, holding that the Constitutional Court ’ s decision concerned only persons who retired as from 1995.

On 3 February 1997 the Second Instance Commission within the Fund dismissed the applicant ’ s appeal.

In March 1997 the applicant instituted administrative contentious proceedings before the Supreme Court challenging the lawfulness of the decisions.

On 19 November 1997 the Supreme Court quashed the decision of 3 February 1997 as adopted by a body which did not meet the statutory requirements to decide in second instance. It referred to the Constitutional Court ’ s decision abrogating the provisions from the Law in pursuance to which the Second Instance Commission within the Fund was vested to decide upon appeals against the Fund ’ s decisions.

On 28 January 1998 the Government Appeal Commission (“the Commission”) ( Комисија за решавање во втор степен по предметите од пензинското и инвалидското осигурување) dismissed the applicant ’ s appeal reiterating the reasoning given by the Fund ’ s decision of 25 November 1996 .

On 15 September 1998 the applicant instituted administrative contentious proceedings before the Supreme Court against this decision.

On 27 October 1999 the Supreme Court quashed the Commission ’ s decision and remitted the case for re-examination. It held that the Commission had not examined the applicant ’ s request for reassessment of the previous years ’ salaries as submitted by him, but instead had evaluated the impact of the Constitutional Court ’ s decision on the calculation of the amount of his pension.

It appears that on 15 February 2000 the applicant instituted administrative contentious proceedings before the Supreme Court as the Commission remained inactive and refrained from deciding upon his claim.

On 12 June 2000 the Commission upheld the applicant ’ s appeal and decided that the amount of his pension should be increased. It referred to the Supreme Court ’ s decision given in its Plenary Session about the calculation of a pension after the Constitutional Court ’ s decision abrogating some provisions in the Law.

On 22 June 2000 the applicant complained to the Supreme Court that the Commission had not decided upon his initial claim as submitted in his request for opening of new proceedings.

On 7 September 2000 the applicant asked the President of the Supreme Court to join the proceedings and to decide on the merits.

It appears that on 5 December 2001 the Supreme Court adopted two decisions. As concerned the applicant ’ s complaint against the Commission ’ s decision, the Supreme Court dismissed his claim and found that the Commission had decided upon his request for adjustment of the amount of his pension. It also established that the applicant had instituted separate proceedings before the court about the claim he had initially submitted for opening of new proceedings.

As concerning the applicant ’ s complaint for inactivity of the administration, on 5 December 2001 the Supreme Court upheld the applicant ’ s appeal and instructed the Commission to decide upon his complaint against the Fund ’ s decision of November 1996.

On 28 March 2002 the Commission decided upon the applicant ’ s claim concerning the calculation of the amount of his pension.

On 10 February 2005 the Supreme Court dismissed the applicant ’ s claim and upheld the Commission ’ s decision. It found that the Commission had correctly calculated the amount of the applicant ’ s pension in compliance with the Constitutional Court ’ s decision.

On 9 May 2005 this decision was served on the applicant.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the proceedings did not comply with the “reasonable time” requirement.

2. With a subsequent submission filed in August 2005, the applicant also complains under Article 1 of Protocol No. 1 that he was deprived of part of his pension because the national law was wrongly applied and the amount of his pension was erroneously calculated. He also invokes Article 14 of the Convention in this respect.

THE LAW

1. The applicant complains about the inordinate length of the proceedings concerning the calculation of the amount of his pension , which began in 1996 and were terminated by the Supreme Court ’ s decision rendered on 10 February 2005 .

A rticle 6 § 1 of the Convention, in so far as relevant, reads as follows :

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

A. The Government ’ s objection

The Government submitted that the proceedings complained of should not be considered as a single one, but as three distinct sets of proceedings terminated at different times. The first two sets of proceedings ended with the Supreme Court ’ s decisions of 1997 and 1999 respectively and the third one was terminated by the Supreme Court ’ s decision in December 2001. Consequently, as concerning the first two sets of the proceedings, the Government argued that the applicant failed to comply with the six-month rule under Article 35 § 1 of the Convention.

The applicant did not comment on the Government ’ s objection.

The Court is not persuaded by the Government ’ s argument that the proceedings complained of should be considered as three distinct sets of proceedings. The mere fact that the case was several times referred to the Supreme Court for adjudication after the administrative bodies remained inactive or decided on the merits, did not split the proceedings into separate sets, as the content of dispute was the same throughout the proceedings before the administrative bodies and the Supreme Court. After each decision of the Supreme Court, the case was referred back to the administrative bodies for decision making until it finally dismissed the applicant ’ s claim. Moreover, the Court observes that the case was not finally decided by the Supreme Court ’ s decision adopted in December 2001 as argued by the Government, but instead in May 2005 when was served on the applicant the decision in which the Supreme Court finally decided the applicant ’ s claim as submitted with his initial request for opening of new proceedings.

It follows that the Government ’ s objection that the applicant failed to lodge his application with the Court within a period of six months from the date on which the final decision was taken must be rejected.

B. Merits

The Government submitted that the proceedings complained of were composed of three distinct sets of proceedings and none of them contravened the “reasonable time” requirement. In the first set of proceedings, the Supreme Court upheld the applicant ’ s claim and remitted the case for re-examination to the Commission. The second set of proceedings started in September 1998, when the applicant instituted administrative contentious proceedings in the Supreme Court and ended in October 1999 when the court upheld the applicant ’ s claim and remitted the case for re-examination. Neither sets of proceedings were of excessive length as they lasted about eight and twelve months respectively. The third set of proceedings before the Supreme Court lasted about eighteen months until December 2001 when the Supreme Court reached its decision. The Government also referred to the excessive workload of the Supreme Court and its proceedings with the complaints related to the local elections that took place in 2000.

The applicant rejected the Government ’ s observations arguing that the proceedings would have been of reasonable length if the administrative bodies had abided by the Supreme Court ’ s decisions or if the latter had decided the case on the merits instead.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. With a subsequent submission lodged in August 2005, after the conclusion of the proceedings, the applicant complains under Article 1 of Protocol No. 1 that he was deprived of his possession as the national authorities wrongfully applied the national law and erroneously calculated the amount of his pension. He also invokes Article 14 of the Convention in this respect. Article 14 and Article 1 of Protocol No.1 insofar as relevant, provide:

Article 14

“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.”

A rticle 1 of Protocol No.1

“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.”

The Court considers that the applicant ’ s complaints under Article 1 of Protocol No. 1 relate to the outcome of the proceedings and the amount of pension awarded. It 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 Hadzic v. Croatia (dec.), no. 48788/99, ECHR). Moreover, having regard to the pecuniary nature of the entitlement to a given social security benefit, Article 1 of Protocol No. 1 may be applicable without it being necessary to rely solely on the link between ent itlement and the obligation to “ pay taxes or other contributions ” (see the 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). However, even if it is assumed that Article 1 of Protocol No.1 guarantees persons certain social insurance benefits, including the right to a pension, it cannot be interpreted as entitling that person to a pension of particular amount (see Müller v. Austria , 5849/72, Commission Report of 1 October 1975 , DR 43, pp. 25, 31). In the circumstances of the present case, the matter of the calculation of the applicant ’ s pension fell primarily for the domestic courts to assess and there is no evidence that in their application of domestic law or assessment of the evidence there was any arbitrariness capable of raising an issue under Article 1 of Protocol No. 1.

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

As regards Article 14 of the Convention, the Court ’ s case-law establishes that it complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the 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 it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see Gaygusuz v. Austria , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1141, § 36; Domalewski v. Poland (dec.), no. 34610/97, ECHR 1999-V).             

The Court has found above that the substantive complaints under Article 1 of Protocol No.1 are manifestly ill-founded. Moreover, the Court notes that not only the applicant ’ s complaints under Article 14 of the Convention are unsubstantiated, but the latter had failed to exhaust the domestic remedies as he did not file his complaint before the Constitutional Court (see Å ijakova and others v. the former Yugoslav Republic of Macedonia (dec.), no. 67914/01).

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

For these re asons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaint concerning the length of proceedings ;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M . Zupančič Registrar President