FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45132/98 by Ivan GAUDER against Croatia

The European Court of Human Rights, sitting on 21 June 2001 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , Mr M. Pellonpää , Mrs S. Botoucharova , judges [Note1] ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 11 November 1998 and registered on 22 December 1998,

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, Ivan Gauder , is a Croatian national, born in 1929 and living in Pula . 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 in the Yugoslav People’s Army (YPA) and in 1983 retired from service. His military pension was assessed according to his rank and years of service and was paid from the Yugoslav Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia.

On 31 December 1991 the Parliament passed a law on changes of the Act incorporating into Croatian law the former federal law regulating the pension insurance for military personnel (hereinafter the “Military Pesnion Act” - Zakona o preuzimanju saveznih zakona iz oblasti mirovniskog i invalidskog osiguranja vojnih osiguranika koji se u Republici Hrvatskoj primjenjuje kao republički zakon - Official Gazette 73/1991). This new law prescribed that the former YPA officers’ pensions were to be assessed to 63.22 % of what they received in December 1991.

Accordingly, on 12 December 1992, the Social Security Fund, Pula Office ( Republički fond mirovinskog i invlidskog osigurnaja radnika Hrvatske , Područna služba u Puli ), assessed the applicant’s pension, as from 1 October 1992, to 63.22 % of the amount he had received in December 1991. After the ensuing applicant's appeal was dismissed, he instituted proceedings with the Administrative Court ( Upravni sud Republike Hrvatske ). The applicant claimed that the decisions to decrease his military pension were unlawful and impaired his property rights. He maintained that since the Croatian authorities had incorporated into the Croatian legal system the Yugoslav federal law on the payment of the former federal military personnel’s pensions the Republic of Croatia was obliged to pay his pension in full amounts.

The Administrative Court dismissed the applicant’s claim on 15 February 1994. It found that the lower bodies applied the provisions of the laws regulating pension rights of the former YPA officers correctly. They based their decision on the Act of 31 December 1991 which provided that the former YPA officers’ pensions were to be assessed to 63.22 % of what they received in December 1991. Furthermore, the applicant's property rights were not impaired by the Croatian authorities as the Yugoslav Federal Fund stopped paying the applicant's pension. The Croatian authorities accepted the payment of his pension according to the relevant provisions of the Acts regulating that matter.

According to the applicant, in his claim of 29 August 1994, he challenged both the constitutionality of the decisions of the administrative bodies and the Administrative Court which reduced his military pension, as well as the constitutionality of the 31 December 1991 Act that served as a basis for the reduction of his pension.

According to the Government, on 29 August 1994, the applicant lodged a constitutional claim challenging only the constitutionality of the 31 December 1991 Act that served as basis for the reduction of his pension, while he failed to challenge the lower bodies’ decisions as such.

On 4 February 1998 the Constitutional Court ( Ustavni sud Republike Hrvatske ) terminated the proceedings concerning the applicant's complaint. In its decision the court stated that it terminated the proceedings concerning the constitutionality of various laws enacted in 1991 and 1992, regulating pension rights of the former YPA officers, as on 18 October 1993 the Parliament had adopted a new law concerning that matter - the Former YPA Officers Pension Act ( Zakon o ostvarivanju prava iz mirovnskog i invalidskog osiguranja pripadnika bivše JNA - Official Gazette no. 96/93).

B. Relevant domestic law

The relevant provisions of the 1991 Constitutional Act on the Constitutional Court (hereinafter the “1991 Constitutional Court Act” - Ustavni zakon o Ustavnom sudu , Official Gazette 13/1991) read as follows:

Section 15

“Every person has a right to institute proceedings challenging the constitutionality of the laws...”

Section 23 § 2

“Each person whose rights have been violated by a decision based on the legislation declared unconstitutional or unlawful may ask the body that took the decision to vary it...”

Section 27

“The Constitutional Court shall terminate proceedings concerning the constitutionality of legislation that has been repealed or brought into line with the Constitution and statute law while those proceedings are pending before the Constitutional Court.”

Section 28 § 1

“Every person, who considers that any of his constitutional rights have been violated by a decision of judicial or administrative body or any other body invested with public authority, may lodge a constitutional complaint with the Constitutional Court.”

Section 30

“By a decision accepting a constitutional complaint the Constitutional Court quashes the contested decision and remits a case for re-trial.”

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 alone and taken in conjunction with Article 14 of the Convention, that the decision to decrease his military pension discriminated against him and violated his right to property.

2. The applicant complains further that the proceedings concerning his constitutional complaint lasted unreasonably long.

3. The applicant complains also of the fact that the Constitutional Court failed to decide his constitutional complaint but merely terminated the proceedings due to the enactment of new legislation.

THE LAW

1. The applicant complains that the decision to reduce his military pension violated his right to property under Article 1 of Protocol No. 1 and discriminated against him contrary to Article 14 of the Convention.

Article 1 of Protocol No. 1 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.”

Article 14 of the Convention reads 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.”

a) The Government submit 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 pension was reduced already in 1992. 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 February 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.

b) The Government submit further that the present application is incompatible ratione personae with the provisions of the Convention insofar as the Republic of Croatia continued to pay the applicant’s pension after the payments from the Yugoslav Federal Fund in Belgrade had stopped. Consequently, the applicant is not a victim of any violation of the rights guaranteed by the Convention, as he has been receiving his pension without any interruptions.

The Court recalls that, according to its constant case-law, the application is incompatible ratione personae with the provisions of the Convention in the case when it is directed against a State which is not a party to the Convention or against a private person or when the applicant fails to show that he might be a victim of a violation of the Convention rights.

The Court notes, however, that the present application is directed against a State that has ratified the Convention and against a decision by the State authorities to decrease the applicant’s pension. Furthermore, the applicant may claim to be a victim of the violation of the rights guaranteed by the Convention because he alleges that the fact that his pension has been decreased violates Article 1 of Protocol No. 1.

Therefore, the objection of incompatibility ratione personae of the application must be dismissed.

c) As regards the substance of the complaint made under Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention, the Government invite the Court to declare this part of the application inadmissible as being manifestly ill-founded. In this respect they contend that the former European Commission of Human Rights distinguished a pension system where individual contributions were made from a pension system based on the principle of solidarity where there is no connection between the contributions paid and the later pensions. Only the first of those systems founded some property rights, while the second system does not guarantee any payments of a certain amount of pension, but only an expectation of a pension where its amount depends on the conditions prevailing at the time of payments.

In the present case, the Government contend further that the applicant's right to a pension was recognised within a specific pension system of the YPA’s officers. The Republic of Croatia, after the dissolution of the former Yugoslavia, assessed the applicant's pension to 63.22 % of the amount he had received in December 1991. However, the applicant's property rights were not violated by a decrease of his pension as he had never been a member of any pension system in Croatia and he had never paid any contributions to the Croatian pension system. The applicant's pension is based on the principle of solidarity as there is no direct link between the contributions paid to the fund in Belgrade and the payments of his pension in Croatia.

Furthermore, States enjoy quite a wide margin of appreciation in regulating their social policy and Croatia has no obligation under international law towards the former YPA officers to ensure to them the amount of pension that they had received from the Yugoslav Federal Fund.

In respect of the alleged violation of Article 14 of the Convention, the Government contend that the only question is whether the laws that served as a basis for reducing the applicant's pension were discriminatory. The Government argue that they are not as they do not discriminate against the applicant on any basis. The pensions of all former YPA officers are regulated in the same manner. In addition, the Government point out that Article 14 is not independent, but may be invoked only in connection with some substantive Article of the Convention. As the right to a pension in the specific circumstances of the present case may not be regarded as a property right, there cannot be any violation of Article 14 of the Convention, having in mind that it is not autonomous.

The applicant argues that the Republic of Croatia took over the rights and obligations of the former Yugoslavia, and is therefore obliged to pay his pension in the same amount as it was assessed and paid from the former Yugoslav Federal Pension Fund.

As to the violation of Article 14, the applicant contends that by reducing only the former YPA officers’ pensions the Croatian authorities have discriminated against that category of citizens.

As regards the circumstances of the present case the Court recalls that the same issues were raised in the case of Janković v. Croatia (see Janković v. Croatia (dec.), no 43440/98, ECHR 2000-X) where the Court held that although the applicant’s pension had been reduced it could not be said that it was inferior to pensions of all other categories of pensioners in Croatia. The applicant had only lost certain privileges that had been formerly granted to him as a military officer of a state that does no longer exist.

Furthermore, the Court considered that the reduction of the former Yugoslav People’s Army officers pensions by Croatian authorities represented a method of integrating those pensions into the general pension system of Croatia (see, mutatis mutandis , Schwengel v. Germany (dec.), no. 52442, 2 March 2000, unpublished). The Court considered also that States enjoyed quite a wide margin of appreciation in regulating their social policy. This also applied in the specific context of the dissolution of the former Yugoslavia and with regard to persons who had been granted special privileges by the former State, as, for instance, members of the former State’s army, 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, had not been divided among the successor States. The Court noted, in that respect, that the Croatian authorities had accepted to pay pensions to former Yugoslav People’s Army officers and had adjusted these pensions with those of other pensioners so that the average pension of a Yugoslav People’s Army officer was still slightly higher than the average pension in Croatia. The Court observed that in the case of Janković v. Croatia, by virtue of the decision of the Social Security Fund, Pula Office of 12 December 1992, Mr Janković , like also the applicant in the present case, had lost a certain percentage of his pension. The Court further found that Mr Janković had, however, retained all the rights attached to his ordinary pension under the general social insurance system. Consequently, the Court considered that Mr Janković’s pecuniary rights stemming from the contributions paid into his pension scheme had remained the same. In those circumstances, the Court did not consider that Mr Janković’s right to derive benefits from the social insurance scheme was infringed in a manner contrary to Article 1 of Protocol No. 1, in particular as the loss of a certain percentage of his pension had not resulted in the essence of his pension rights being impaired. Nor did the Court consider that divesting Mr Janković of a part of his pension amounted to discrimination contrary to Article 14 of the Convention (see Janković v. Croatia, cited above).

The Court does not see any reason to depart from its decision adopted in the case of Janković v. Croatia.

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 as inadmissible pursuant to Article 35 § 4.

2. The applicant complains further that the length of the proceedings before the Constitutional Court exceeded a reasonable time. The Court will examine this complaint under 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 invite the Court to declare this part of the application inadmissible on the ground that it is manifestly ill-founded within the meaning of Article 35 of the Convention.

The Court recalls that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and that of the competent authorities, and the importance of what was at stake for the applicant in the litigation (see the Süßmann v. Germany judgment of 16 September 1996, Reports 1996-IV, p. 1172-73, § 48; the Pammel and Probstmeier v. Germany judgments of 1 July 1997, Reports 1997-IV, §§ 60 and 55, respectively; and Gast and Popp v. Germany , no 29357/95, § 70, ECHR 2000-II).

The Court notes further that the period to be taken into account after the entry into force of the Convention in respect of Croatia, i.e. 5 November 1997, amounts to three months. At the moment of ratification, the proceedings had been pending for three years, five months and five days.

The applicant’s conduct did not cause any delay in the proceedings.

As regards the conduct of the Constitutional Court, the Court recalls that, as it has repeatedly held, Article 6 § 1 imposes on Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time.

Although this obligation applies also to a Constitutional Court, it cannot be construed in the same way as for an ordinary court. Its role as guardian of the Constitution may make it particularly necessary for a Constitutional Court to take into account considerations other than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms. Furthermore, while Article 6 requires that judicial proceedings be expeditious, it also lays emphasis on the more general principle of the proper administration of justice (see the Süßmann judgment, cited above, p. 1174, §§ 55-57; Gast and Popp , cited above, § 75, and Janković , cited above).

In the instant case, the Court finds that it appears reasonable for the Constitutional Court to have joined all the cases so as to obtain a comprehensive view of the legal issues arising from the integration of Yugoslav People’s Army officers’ pension rights into the general pension system of Croatia (see, mutatis mutandis , the Süßmann judgment, cited above, § 59; Gast and Popp , cited above, § 76 and Janković , cited above).

The Court also notes that the case involved complex legal issues as to the obligations of Croatia towards the retired officers of the Yugoslav People’s Army in the specific context of the dissolution of the former Yugoslavia, failing any agreement on state succession.

In the light of the circumstances of the present case, in particular the fact that the proceedings lasted for only three months after the entry into force of the Convention in respect of Croatia, the Court finds that that delay does not appear substantial enough for the length of the proceedings before the Constitutional Court to have exceeded a “reasonable time” within the meaning of Article 6 § 1 (see, mutatis mutandis , Gast and Popp , cited above, § 81, and Janković , cited above).

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

3. The applicant complains further that the Constitutional Court failed to decide his constitutional complaint challenging the administrative bodies’ and the Administrative Court’s decisions to reduce his military pension. The Court will examine this complaint under Article 6 of the Convention, which, in so far as relevant reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law.”

The Government maintain that the issue in the proceedings which terminated by the Constitutional Court’s decision of 4 February 1998 were not the applicant's constitutional rights and freedoms, but an abstract review of the constitutionality of the contested Act. However, as the new legislation regulating pension rights of all Croatian citizens, including the former YPA officers, entered into force on 1 January 1999, the Constitutional Court, pursuant to Section 27 of the 1991 Constitutional Court Act, had no other choice but to terminate those proceedings.

The applicant contends that he has never had a proper examination of his claims before the domestic authorities.

The Court, in the Golder case, held that the procedural guarantees laid down in Article 6 concerning fairness, publicity and expeditiousness, would be meaningless if there was no protection of the pre-condition for enjoyment of those guarantees, namely, access to court. It established this as an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlie much of the Convention (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36).

This right is not, however, absolute. It may be subject to legitimate restrictions, for example, statutory limitation periods, security for costs orders, regulations concerning minors and persons of unsound mind (see the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, pp. 1502-3, §§ 51-52, the Tolstoy Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, pp. 80-81, §§ 62-67, the Golder judgment, cited above, p. 19, § 39). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation, but the final decision as to observance of the Convention's requirements rests with the Court. Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and in particular whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see the Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57; the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 49–50, § 65, and F. E. v. France, no. 38292/97, p. 3349, § 44, Reports 1998-VIII).

The Court recalls further that Article 6 § 1 does not guarantee a right of bringing constitutional proceedings. Nevertheless, a Contracting State which sets up a possibility of challenging the constitutionality of the lower courts’ decisions may be required to ensure that persons within its jurisdiction enjoy before the Constitutional Court the fundamental guarantees in Article 6 (see, mutaits mutandis , the Delcourt v. Belgium judgment of 17 January 1970, Series A no. 11, pp. 14-15, § 25 and the Tolstoy Miloslavsky , cited above, p. 79, § 59).

However, the manner of application of Article 6 to proceedings before the Constitutional Court depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the Constitutional Court therein (see, mutatis mutandis , the Monnell and Morris v. the United Kingdom judgment of 2 March 1987, Series A no. 115, p. 22, § 56).

The Court is fully aware of the special role and status of a Constitutional Court, whose task is to ensure that the legislative, executive and judicial authorities comply with the Constitution and which, in those States that have made provision for a right of individual petition, affords additional legal protection to citizens at national level in respect of their fundamental rights guaranteed by the Constitution (see the Süßmann judgment, cited above, p. 1171, § 37).

The Court’s task is not to substitute itself for the competent Croatian authorities in determining the most appropriate policy for the operation of the Constitutional Court. The Court’s task is to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see in particular the above-mentioned Fayed judgment, p. 55, § 81; and, mutatis mutandis , the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, para . 34). It will, therefore, confine itself to examining the specific issues before it (see also the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 21, § 61).

The applicant maintains in the present case that the decision of the Constitutional Court terminating the proceedings concerning his constitutional complaint, where he alleged that his right to property was violated and that he was discriminated against, deprived him of access to court as domestic authorities have not answered his claims.

Accepting that the constitutional complaint did not provide the desired remedy, some other form of effective access to the courts should have been available to the applicant for this purpose by virtue of Article 6 § 1 (see, mutatis mutandis , the Fayed judgment, cited above, p. 52, § 72).

The Court observes, firstly, that the applicant was not prevented in any practical manner from bringing his claims before the domestic courts. Indeed, the case was litigated before the Administrative Court. The Administrative Court found that the lower bodies applied the provisions of the laws regulating pension rights of the former YPA officers correctly. It based its decision on the 31 December 1991 Act which provided that the former YPA officers’ pensions were to be assessed to 63.22 % of what they received in December 1991. Furthermore, the applicant's property rights were not impaired by Croatian authorities as the Yugoslav Federal Fund stopped paying the applicant's pension. The Croatian authorities accepted the payment of his pension according to the relevant provisions of the Acts regulating that matter.

The arguments before that court were therefore concentrated on the legal issues, primarily whether a decision to reduce the applicant's pension was legally based and whether it violated his right of property.

The administrative proceedings could not, it is true, provide the applicant with an examination of the alleged violation of his constitutional rights and freedoms. Nonetheless, the manner in which the applicant's claims were examined in the proceedings before the Administrative Court and in which the judicial review of the lower administrative bodies’ decisions was provided is relevant for assessing the permissibility under Article 6 § 1 of a limitation on the person's opportunities to go to court to review the lower bodies’ decisions.

In the circumstances of this case the Court finds that the applicant may not claim that he was deprived of any right to a determination on the merits of his claims. His claims were properly and fairly examined in light of the applicable domestic legal principles concerning the administrative proceedings. Once the Administrative Court had ruled on the arguable legal issues that brought into play the applicability of Article 6 § 1 of the Convention, the applicant could no longer claim any entitlement under Article 6 § 1 to obtain any further examination of his case.

The Court finds that, taking into account the entirety of the proceedings it cannot be said that the fact that the Constitutional Court terminated the proceedings concerning the applicant's constitutional claim impaired disproportionally , for the purposes of Article 6 § 1, the essence of the applicant's right of access to a 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.

Vincent Berger Georg Ress Registrar President

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