FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47239/99 by Ernest ZAPLETAJ against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 8 October 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 6 November 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ernest Zapletaj, is a Slovakian national, who was born in 1941 and lives in Levice.

A. The circumstances of the case

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

In 1971 the applicant was dismissed from the army for political reasons. In 1991 he was again admitted as a professional soldier. In accordance with the governmental Regulation No. 249/1992, in conjunction with the Extra ‑ Judicial Rehabilitations Act of 1991, the period during which the applicant had been prevented, for political reasons, from serving as a professional soldier was to be considered as a period of service in the army when determining his salary and pension entitlements.

On 1 January 1998 the Pecuniary Entitlements of Soldiers Act of 1997 entered into force. It provided, in Section 79, that the above Regulation No. 249/1992 should not be applicable in respect of professional soldiers. As a result, the applicant’s salary and pension entitlements were considerably diminished since their amount depended on the period of time during which he had served in the army.

On 27 February 1998 the Ministry of the Defence confirmed to the applicant, with reference to the Pecuniary Entitlements of Soldiers Act of 1997, that the period during which he had been prevented from serving in the army could no longer be taken into account when determining his salary and pension rights.

On 24 March 1998 the president of a parliamentary committee confirmed the position to the applicant. The letter further stated that the members of the committee would consider the possibility of initiating an amendment to the relevant law.

On 9 July 1998 the applicant complained to the Constitutional Court that the relevant statutory provisions were discriminatory. On 17 August 1998 a constitutional judge informed the applicant that individuals lacked standing to bring proceedings with a view to having the conformity of a law with the Constitution or with an international treaty determined. The letter concluded that the Constitutional Court could not entertain the applicant’s complaint.

On 25 August 1998 a judge of the Supreme Court informed the applicant that the Supreme Court lacked jurisdiction to make general comments on legal rules.

On 9 September 1998 the Office of the Government admitted, in reply to the applicant’s complaint, that there was an inconsistency between the Pecuniary Entitlements of Soldiers Act of 1997 and Section 180 of the Military Service Act of 1997, and that the relevant provisions had to be brought into conformity with the Constitution. The applicant was further informed that it was expected that the Ministry of the Defence would initiate a legislative amendment with a view to resolving the problem.

The applicant requested the General Prosecutor’s Office to bring proceedings with a view to having the alleged conflict between the Pecuniary Entitlements of Soldiers Act of 1997 and the Constitution determined by the Constitutional Court. On 5 October 1998 the General Prosecutor’s Office informed the applicant that his request had been transmitted to the Principal Military Prosecutor’s Office.

On 31 December 1998 the applicant retired from the army.

B. Relevant domestic law and practice

Regulation No. 249/1992

In accordance with Section 16 of Regulation No. 249/1992 governing the salaries of persons employed by public organisations, employers are entitled to take into account the period during which a person was prevented from exercising his or her profession for reasons of political persecution as a period of activity in the relevant field for the purpose of determining the length of the professional experience of the person concerned.

Pecuniary Entitlements of Soldiers Act of 1997

Section 79 of the Act on Pecuniary Entitlements of Soldiers ( Zákon o peňažných náležitostiach vojakov ) provided that Regulation No. 249/1992 ceased to be applicable in respect of professional soldiers from the moment of the entry into force of that Act on 1 January 1998.

As from 1 January 2002 the Act was amended. As a result, Section 10 (4) provides that the time which is to be considered as period of employment under special laws, such as the Extra-Judicial Rehabilitations Act, shall be included, in case of professional soldiers, in the overall duration of their service in the army.

The Military Service Act of 1997

The Military Service Act ( Zákon o vojenskej službe ) was adopted on 21 November 1997 and it entered into force on 1 January 1998. It governs the legal aspects of the exercise of military service and its cessation.

Section 180 (1) provides that all periods of time during which a person was considered to have served in the army under rules in force prior to the enactment of the Military Service Act of 1997 shall be included in the overall duration of such a person’s military service when determining his or her entitlements under that Act.

Constitutional provisions and practice

Pursuant to Article 127 of the Constitution, as in force at the relevant time, the Constitutional Court shall review the challenges to final decisions made by central government authorities, local government authorities and local self-government bodies in cases concerning violations of fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court.

Article 130 of the Constitution, as in force at the relevant time, provides as follows:

“1. The Constitutional Court shall commence proceedings upon a proposal submitted by:

a) no less than one fifth of all members of the National Council of the Slovak Republic;

b) the President of the Slovak Republic;

c) the Government of the Slovak Republic;

d) a court;

e) the General Prosecutor;

f) any person whose rights shall be adjudicated pursuant to Article 127.

...

3. The Constitutional Court may commence proceedings upon a petition submitted by legal entities or individuals claiming a violation of their rights.”             

In accordance with its established practice, the Constitutional Court lacks jurisdiction to examine a petition under Article 130 (3) of the Constitution when the determination of the point in issue involves the preliminary question of conflict of legal rules (for example, I.  ÚS 106/93, decision of 12 October 1993).

COMPLAINTS

The applicant complains under Article 14 of the Convention that he was discriminated against in the enjoyment of his salary and pension entitlements as a result of the enactment of the Pecuniary Entitlements of Soldiers Act of 1997.

The applicant further alleges a violation of Article 13 of the Convention in that he had no effective remedy at his disposal in this respect.

THE LAW

1. The applicant complains that he was discriminated against in the enjoyment of his salary and pension entitlements as a result of the enactment of the Pecuniary Entitlements of Soldiers Act of 1997. He alleges a violation of Article 14 of the Convention which provides as follows:

“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.”

The Court recalls that, according to its established case-law, Article 14 of the Convention 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, among other authorities, the Gaygusuz v. Austria judgment of 16 September 1996, Reports of Judgments and Decisions 1 996-IV, p. 11, § 36).

In the present case the applicant complains about discrimination in the enjoyment of his salary and pension entitlements. The Court therefore considers that this complaint falls to be examined in conjunction with Article 1 of Protocol No. 1 which 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 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 notes that the alleged interference with the applicant’s rights directly resulted from the enactment, with effect from 1 January 1998, of the Pecuniary Entitlements of Soldiers Act of 1997.

The applicant’s above subsequent submissions to various Slovakian authorities were aimed, in substance, either at invalidating the statutory provision in question by means of challenging its conformity with the Constitution, or at initiating its amendment.

Under Slovakian law a binding decision on the alleged conflict between the Pecuniary Entitlements of Soldiers Act of 1997 and the Constitution could only be taken by the Constitutional Court. However, under the domestic law the applicant lacked standing to bring proceedings directly with a view to having the issue determined. As regards the applicant’s request that proceedings to that effect be brought by the General Prosecutor, the Court notes that the use of such a remedy was within the discretionary power of that authority.

The applicant’s submissions to the Constitutional Court and to the Office of the General Prosecutor were not, therefore, effective remedies which the applicant was required to exhaust for the purpose of Article 35 § 1 of the Convention.

The applicant’s submissions to the other authorities which, at the most, could have initiated an amendment to the law in question also cannot be considered as remedies which the applicant was required to exhaust for the purpose of Article 35 § 1 of the Convention as they were not capable of providing direct redress in respect of the alleged violation of the applicant’s rights.

The above replies to his complaints which the applicant received from the Slovakian authorities cannot, therefore, be regarded as final decisions within the meaning of Article 35 § 1 of the Convention.

In these circumstances, the Court finds that the six-month period set out in Article 35 § 1 of the Convention began to run when the Pecuniary Entitlements of Soldiers Act of 1997 entered into force on 1 January 1998. Since the application was introduced on 6 November 1998, the applicant failed to respect the aforesaid six-month time-limit.

It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant further complains that he had no effective remedy at his disposal. He alleges a violation of 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.”

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant’s complaint under Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 is inadmissible as it was introduced out of time. In these circumstances, the applicant did not have an “arguable claim”, and Article 13 is therefore inapplicable to his case.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President