FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63779/00 by Zdenko BARBAÄŒA against Croatia

The European Court of Human Rights (First Section), sitting on 18 September 2003 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mr V. Zagrebelsky , Mrs E. Steiner, judges , and Mr S . NIELSEN , Deputy Section Registrar ,

Having regard to the above application lodged on 1 June 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, Mr Zdenko Barbača, is a Croatian citizen, who was born in 1931 and lives 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.

In August 1989 the applicant obtained his old-age pension which was assessed according to his average wage and years of employment. His pension, as all other pensions in Croatia, was regularly adjusted in line with the increase in wages and the cost of living, pursuant to the 1991 Pension Insurance Act ( Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja - Official Gazette no. 53/1991).

A number of Government Decrees ( Uredbe Vlade ) adopted between 1993 and 1994 restricted the budget allocation for payment of pensions in Croatia. As a result of these restrictions, ever since August 1993 the pension funds have not been brought into line with the increase in wages but only with the increase in the cost of living, contrary to the 1991 Pension Insurance Act.

On 13 February 1997 the Law on Indexing Pensions and Other Payments from Pension and Invalidity Insurance Funds and on Management of the Pension and Invalidity Insurance Funds (hereinafter the “The Pension Indexing Act” - Zakon o usklađivanju mirovina i drugih novčanih primanja iz mirovinskog i invalidskog osiguranja, te upravljanju fondovima mirovinskog i invalidskog osiguranja - Official Gazette no. 20/1997) was passed annulling the provisions of the 1991 Pension Insurance Act which regulated the adjustment of pensions. The new law did not bring the pensions into line with the increase in wages and cost of living.

On 12 May 1998 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared certain provisions of the 1997 Pension Indexing Act incompatible with the Constitution. The decision was published in the Offical Gazette no. 69/1998.

1. Administrative proceedings

On 30 June 1998 the applicant applied to the Zagreb Office of the Croatian Pension Fund ( Republički fond mirovinskog i invalidskog osiguranja radnika Hrvatske, Područna služba Zagreb ) requesting that his pension be adjusted pursuant to the Constitutional Court’s decision. He received no reply.

On 1 September 1998 the applicant lodged a request with the appellate commission of the Pension Insurance Fund. He received no reply.

On 16 December 1998 the applicant filed an action with the Administrative Court ( Upravni sud Republike Hrvatske ) pursuant to the provisions of the Administrative Procedure Act, asking that the court order the lower administrative bodies to reply to his request.

The Administrative Court twice sought observations from the lower administrative bodies, but received neither a reply nor the case-file in question.

Meanwhile, on 8 December 2000 Parliament enacted the Act on the Increase of Pension Instalments with a view to complying with the Constitutional Court’s decision of 12 May 1998.

According to the Government, after the enactment of the above Act the applicant’s pension has been increased by 20 %.

On 27 June 2002 the Administrative Court ruled in the applicant’s favour and ordered the Croatian Pension Fund’s Central Office (Hrvatski zavod za mirovinsko osiguranje, Središnja služba) to decide on the applicant’s appeal within thirty days.

On 27 September 2002 the Croatian Pension Fund’s Central Office ordered the Zagreb Office of the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje, Područna služba Zagreb) to decide on the applicant’s request within thirty days.

On 21 October 2002 the Zagreb Office of the Croatian Pension Fund rejected the applicant’s request.

On 4 November 2002 the applicant appealed against that decision.

It appears that the proceedings are presently pending before the Croatian Pension Fund’s Central Office as the appellate body.

2. Civil proceedings

On 30 December 1998 the applicant filed a civil action with the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking payment of his full pension adjusted in accordance with the Constitutional Court’s decision.

On 2 May 2002 the court declined jurisdiction in the matter and dismissed the action. It found that the relevant administrative bodies had jurisdiction.

On 19 July 2002 the applicant appealed against that decision.

The proceedings are presently pending before the Zagreb County Court ( Županijski sud u Zagrebu ) as the appellate court.

B. Relevant domestic law

The relevant parts of section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 - hereinafter “the 2002 Constitutional Act on the Constitutional Court” - Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002 ) read as follows:

(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...

(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...

(3) In a decision under paragraph 2 of this Article , the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.

The relevant provisions of the Administrative Procedure Act ( Zakon o  općem upravnom postupku - Official Gazette 53/1991) provide as follows:

Section 218 (1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative body is obliged to issue a decision within a period of one month after a party lodged a request. In all other, more complex, cases, an administrative body is obliged to issue a decision within a period of two months after the request was lodged.

Section 218 (2) enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal, as if his request had been denied.

The relevant provisions of the Administrative Disputes Act ( Zakon o upravnim sporovima - Official Gazette 53/1991) provide as follows:

Section 26 enables a party who lodged a request with an administrative body to institute administrative proceedings before the Administrative Court (administrative dispute) in the following situations:

1. If the appellate body does not issue a decision upon the applicant’s appeal within 60 days the applicant may repeat his request, and if the appellate body declines to issue a decision within an additional period of seven days, the applicant may lodge a claim with the Administrative Court.

2. When a first instance administrative body does not issue a decision and there is no right to appeal, the applicant may directly lodge a request with the Administrative Court.

3. If a first instance administrative body does not issue a decision upon the applicant’s request within sixty days in matters where a right to appeal exists, the applicant may lodge his request with the appellate administrative body. Against the decision of that body the applicant may institute administrative proceedings, and if that body has not issued a decision there is a right to institute administrative proceedings under the conditions set out in paragraph 1.

The relevant parts of the Act on the Increase of Pension Instalments ( Zakon o povećanju mirovina , Official Gazette no. 127/2000) provide that  pension instalments are to be increased, in order to comply with the Constitutional Court’s decision of 12 May 1998, according to the financial possibilities of the State. It regulates the indexes to be applied to the increase of pensions in each calendar year.

COMPLAINTS

1. The applicant complained that the administrative and civil proceedings instituted by him in order to have his pension properly adjusted had exceeded the “reasonable time” requirement contrary to Article 6 § 1 of the Convention.

2. The applicant further complained that his property rights had been violated because the domestic authorities had not rectified the amount of his pension in line with the Constitutional Court’s decision.

3. The applicant also complained under Article 13 of the Convention that he had no effective remedy at his disposal, in respect of both the length of the proceedings and of his right to have his pension paid in accordance with the Constitutional Court’s decision.

THE LAW

1. The applicant complained that the administrative and civil proceedings had exceeded the “reasonable time” requirement contrary to 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 firstly contended that the applicant had failed to exhaust domestic remedies because he did not file a constitutional complaint in respect of the length of the proceedings. Although the application had been lodged with the Court prior to the 2002 amendments to the Constitutional Court Act, the Government maintained that domestic legal remedies were to be exhausted at the moment when the Court decided on the admissibility of an application.

In the alternative, the Government invited the Court to reject the application as manifestly ill-founded.

They stated that the civil proceedings had lasted three years and five months when the Zagreb Municipal Court had declined jurisdiction in the case, while the administrative proceedings had lasted three years and six months when the Administrative Court had delivered its judgment.

They argued that both sets of proceedings were complex because they had raised complicated issues concerning the interpretation of the Constitutional Court’s decision, application of substantive law and application of the legislation which delimited the jurisdiction of administrative and judicial bodies.

The Government acknowledged the importance for the applicant to have his pension claims decided.

As to the applicant’s conduct, the Government alleged that the applicant had filed several identical requests with the Croatian Pension Fund and thus contributed to the length of the administrative proceedings.

As to the conduct of the domestic authorities, the Government pointed out that a large number of identical claims had been submitted to the domestic authorities, which placed an additional burden on them.

The applicant disagreed with the Government.

The Court has firstly examined whether the applicant has complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention. Recalling its decisions in the Slaviček and Nogolica cases where it found that there exists an effective remedy in respect of the length of proceedings in Croatia, the Court sees no reason to depart in the present case from its view expressed in those cases (see Slaviček v. Croatia (dec.), no. 20862/02, 4 July 2002, ECHR 2002- VII and Nogolica v. Croatia (dec.), no. 77784/01, 5 September 2002, ECHR 2002-VIII).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant further complained that his property rights had been violated because the domestic authorities had not rectified the amount of his pension pursuant to the Constitutional Court’s decision. This complaint falls to be considered under 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.”

The Government firstly contended that the applicant failed to exhaust domestic remedies because the domestic proceedings were still pending before the appeal courts.

Secondly, they submitted that the application was incompatible ratione personae with the provisions of the Convention because the applicant was no longer a victim of the alleged violation. They contended that the 2000 legislation had given effect to the Constitutional Court’s decision and the applicant’s pension had been increased by 20% on the basis of that legislation. Therefore, the applicant had not suffered any prejudice due to the fact that his claims had not been decided.

The Government also contested the applicability of Article 1 of Protocol No. 1 in the present case. They alleged that until 2002 the Croatian pension system had been based exclusively on the principle of solidarity, the purpose of which was not to ensure payment of a certain amount of pension corresponding to past contributions to the pension fund, but to provide pensions at a level determined by society’s present capacity to pay. In accordance with the Court’s case law, the applicant’s request for an adjustment of his pension is not to be considered as “possessions” within the meaning of Article 1 of Protocol No. 1.

In the alternative, the Government invited the Court to declare the complaint manifestly ill-founded. They maintained that States enjoyed a wide margin of appreciation in regulating their social policy. Accordingly, it was for the State to choose the appropriate measures for implementing the Constitutional Court’s decision. The applicant was not entitled to receive a certain amount of pension in line with his contributions to the pension fund, bearing in mind the prevailing solidarity principle. The dependency ratio (the ratio between the number of employed persons actively contributing to the fund and persons receiving pensions) had substantially deteriorated and the State’s economic capacity had been significantly reduced due to the war, the post-war reconstruction and the economic crisis. Consequently, the pension fund’s revenue had decreased. Nonetheless, the applicant’s pension had been increased by 20% after the Constitutional Court’s decision.

The applicant disagreed with the Government.

The Court has firstly examined whether the applicant has complied with the rule of exhaustion of domestic remedies as required by Article 35 § 1 of the Convention. The Court notes that both the civil and administrative proceedings brought by the applicant are still pending before the domestic courts and administrative bodies, respectively. Therefore this complaint is premature.

It follows that this part of the application must be rejected under Article 35 §§ 3 and 4 of the Convention.

3. The applicant also complained that he had no effective remedy at his disposal, in respect of both the length of the proceedings and of his right to have his pension paid in accordance with the Constitutional Court’s decision. He relied on Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government invited the Court to declare the complaint manifestly ill-founded. They reiterated their view that the applicant had at his disposal a constitutional complaint, which was an effective remedy in respect of the length of the proceedings. The Government stated that the applicant had instituted two sets of proceedings in order to obtain an increase in his pension. If the applicant’s request were to be rejected by the Croatian Pension Fund, it would be open to the applicant to challenge such a decision before the Administrative Court and subsequently before the Constitutional Court.

The applicant disagreed with the Government.

As explained above, the Court finds that the newly introduced section 63 of the 2002 Constitutional Act on the Constitutional Court does provide the applicant with an effective remedy in respect of the length of proceedings.

As to the applicant’s complaint under Article 1 of Protocol No. 1, the Court notes that the applicant instituted civil and administrative proceedings requesting an increase in his pension. Although an ordinary civil court had declined jurisdiction in the matter, this issue has not been finally resolved and is still pending before the appellate court.

The Court notes further that, as regards his request filed with the administrative bodies, it is open to the applicant in the event of an unfavourable outcome to institute proceedings before the Administrative Court, and, in the final resort, before the Constitutional Court.

It follows that this complaint 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.

Søren N IESLEN Christos R OZAKIS              Deputy Registrar President