FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50943/99 by Stevo RAJKOVIĆ against Croatia

The European Court of Human Rights (Fourth Section) , sitting on 3 May 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 ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 30 June 1999 and registered on 16 September 1999,

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

A. The circumstances of the case

The applicant is a Croatian citizen, born in 1920 and living in Zagreb (Croatia). He is represented before the Court by Mr Milorad Lukač , a lawyer practising in Zagreb (Croatia). The respondent Government are represented by their Agent, Ms Lidija Lukina-Karajković .

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

The applicant served in the Yugoslav People’s Army and, according to the Government, in 1959 he retired from service. The applicant claims that he retired from service in 1960. His military pension was assessed according to his rank and years of service and was paid from the Federal Pension Fund.

In 1991 Croatia enacted a law adopting the former Yugoslav law that had regulated the pension and disability rights of the military personnel. During 1991 and 1992 that law was changed several times by decrees of the Croatian government and acts of Parliament.

On 12 December 1992, the Croatian Social Security Fund, Zagreb Office, assessed the applicant’s pension, as from 1 October 1992, at 63,22 % of the amount he had received until and in December 1991. The applicant appealed against that decision and after his appeal was dismissed, instituted administrative proceedings with the Administrative Court ( Upravni sud Republike Hrvatske ), which dismissed the applicant’s claim on 8 July 1993.

On 18 October 1993 the Croatian Parliament passed a law on the regulation of pensions of the former Yugoslav People’s Army officers that, among other provisions, reiterated that the amount of the former Yugoslav Army officers’ pension shall be 63,22 % of what they had received in December 1991.

On 25 March 1994 the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and the Administrative Court had violated his constitutional rights to protection of property and not to be discriminated against.

On 1 January 1999 the Parliament enacted new legislation regulating the pension rights of all Croatian citizens, including the former Yugoslav Army officers.

On 28 April 1999 the Constitutional Court ( Ustavni sud Republike Hrvatske ) rejected the applicant’s claim. The decision was reasoned as follows:

“The rights of military pensioners, who retired before 8 October 1991 and who had been citizens of the Republic of Croatia with residence therein and in respect of whom the payments of their pensions were terminated by the Social Security Fund of Military Personnel, were regulated by the Act then in force incorporating into Croatian law the former federal law regulating the pension insurance for military personnel (the Military Pensions Act), which is to be applied in the Republic of Croatia as its own law.

Section 1 of the Decree that altered the Military Pensions Act, which is to be applied in the Republic of Croatia as its own law, served as a basis to determine the amount of the applicant’s pension by the first instance decision. That section altered section 3b, § 2 of the above mentioned Act, providing that pensions determined by section 3b § 1 of the same Act will be paid in the amount of 63,22 % of what had been paid in December 1991.

The Constitutional Court has determined that the challenged acts were based on the laws that were in force at that time and that the applicant’s constitutional right on which he relies in his claim was not violated.”

B. Relevant domestic law

Section 1 of the Decree that altered the Military Pensions Act (Official Gazette no. 71/92 of 28 October 1992), which was to be applied in the Republic of Croatia as its own law, provided that the former Yugoslav People’s Army officers’ pensions should be paid in the amount of 63,22 % of what had been paid to them in December 1991.

Section 14 of the Croatian Constitution provides as follows:

“ Citizens of the Republic of Croatia shall enjoy all rights and freedoms, regardless of race, colour, sex, language, religion, political cal or other opinion, national or social origin, property, birth, education, social status or other characteristics.

All shall be equal before the law.”

COMPLAINTS

The applicant complains in substance that by reducing his pension his property rights were violated.

He also complains, in substance, that the failure of the Constitutional Court to provide adequate reasoning for rejecting his constitutional complaint violated his right to a fair trial.

THE LAW

1. The applicant complains that the decision to decrease his military pension violated his right to property. The Court has examined this complaint 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.”

a) The Government argue firstly 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 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 this pension has been decreased violates his right to property which is secured by Article 1 of Protocol No. 1.

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

b) The Government submit further 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 April 1999, 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.

c) As regards the substance of the complaint made under Article 1 of Protocol No. 1 to the Convention, the Government invite the Court to declare this part of the application inadmissible as being manifestly ill-founded. As to the method of assessing the amount of the former Yugoslav People’s Army officers’ pensions, they state that the highest pension paid from the Croatian Pension and Invalidity Insurance Fund in December 1991 amounted to 63,22 % of the highest pension paid at the same time to former Yugoslav People’s Army officers. Therefore, it was decided that that percentage would serve as the basis for assessing all pensions of that category of pensioners. In addition, as from January 1993 pensions of the military personnel have been increased by 15,47 %. After that, they have continuously been adjusted to the salaries in Croatia, in the same manner as all other categories of pensions.

The Government argue further that Croatia, as other sovereign states, enjoys the right to independently regulate its pension system and that it has no obligation to ensure to former Yugoslav People’s Army officers pensions in the same amount as the one they would have had in the former Yugoslavia. This is especially so in view of the fact that Croatia has no access to any federal funds pending an agreement on succession between Croatia and the Socialist Federal Republic of Yugoslavia.

The applicant disagrees with the Government and argues that his pension has been arbitrarily reduced by almost 27 %. Furthermore, the applicant submits that the Republic of Croatia accepted Yugoslav laws concerning the pension rights of the former Yugoslav People’s Army officers and, therefore, has an obligation to pay those pensions in their full amount. He contends further that all the other republics of the former Yugoslavia continued to pay the former Yugoslav People’s Army officers’ pensions in their full amount.

The Court recalls firstly that even though the rights stemming from the payment of contributions to the social insurance system, in particular the right to derive benefits from such a system - for instance in the form of a pension - can be asserted under Article 1 of Protocol No. 1, this provision cannot be interpreted as giving an individual a right to a pension of a particular amount (see, inter alia , Skorkiewicz v. Poland (dec.), no 39860/98, 1 June 1999, unpublished, and Domalewski v. Poland, (dec.), no. 34610/97, ECHR 1999-V, and also, mutatis mutandis , Kuna v. Germany (dec.), no. 53449/99, 10 April 2001, unpublished).

As regards the circumstances of the present case the Court recalls that the same issue was 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 an 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 more than one third 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 (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 further complains that the lack of adequate reasoning of the Constitutional Court’s decision violates his right to a fair trial. The Court has examined this part of the application under Article 6 § 1 of the Convention the relevant part of which reads as follows:

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

The Government argue in particular that the Constitutional Court is not an appellate or Supreme Court and that its sole function is to establish whether in the proceedings preceding the constitutional complaint the applicant’s constitutional rights and freedoms have been violated. Therefore, the competence of that court regarding the assessment of facts and implementation of laws is limited to the question of infringement of constitutional rights and freedoms. The Government point out that the Constitutional Court deemed that the acts challenged by the applicant were based on then existing laws and that, therefore, the applicant’s constitutional rights were not violated. They consider that in the circumstances the disputed issues were adequately explained.

The applicant disagrees with the Government.

The Court reiterates that Article 6 § 1 obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument (see the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, § 61 and Higgins and Others v. France , no. 20124/92, § 42, Reports 1998-I, fasc . 62)). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see the Hiro Balani v. Spain judgment of 9 December 1994, Series A nos. 303-A and B, p. 12, § 29, and pp. 29–30, § 27).

Having regard to these considerations, the Court would emphasise that the notion of a fair procedure requires that a national court which has given sparse reasons for its decisions, whether by incorporating the reasons of a lower court or otherwise, did in fact address the essential issues which were submitted to its jurisdiction and did not merely endorse without further ado the findings reached by a lower court (see Helle v. Finland judgment of 19 December 1997, Reports 1997-VIII, p. 2930, § 60).

In the present case the Constitutional Court did indeed address the issue raised by the applicant - a decrease of his military pension - and found that no constitutional right had been violated by the lower bodies’ decisions. The Court does not consider that the reasons given were inadequate.

The Court concludes therefore that in the particular circumstances of the present case the proceedings in issue were not rendered unfair on the grounds invoked by the applicant.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President