FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50115/99 by Dragiša LAZAREVIĆ against Croatia

The European Court of Human Rights ( Fourth Section) , sitting on 7 December 2000 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , Mr M. Pellonpää , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced on 31 May 1999 and registered on 3 August 1999,

Having regard to the Section’s partial decision of 4 May 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 is a Croatian citizen of Serbian origin, born in 1940 and living in Rijeka , Croatia. He is represented before the Court by Mr Dragan Jovanić , a lawyer practising in Rijeka (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 in 1991 retired from service. His military pension was assessed to 85% of his average wage, according to his rank and years of service and was paid from the Federal Pension Fund. The payments terminated in December 1991, following the dissolution of the Federal Republic of Yugoslavia.

Two separate proceedings took place, in respect of the decrease in the applicant’s military pension.

Firstly, on 31 December 1992, the Croatian Social Security Fund, Rijeka Office, assessed the applicant’s pension, as from 1 October 1992, at 63,22 % of the amount he had received until December 1991. The applicant appealed against that decision and, after his appeal was dismissed, instituted administrative proceedings with the Administrative Court, which dismissed the applicant’s claim on 18 November 1993.

On 4 June 1994 the applicant lodged a constitutional complaint.

On 3 March 1999 the Constitutional Court dismissed the applicant’s complaint.

Secondly, the applicant lodged a constitutional claim challenging the constitutionality of the Act incorporating into Croatian law the former federal law regulating the pension insurance for military personnel (the Yugoslav Military Pensions Act) enacted in 1991 and altered several times in 1991 and 1992. On 4 February 1998 the Constitutional Court terminated those proceedings due to the enactment of new laws regulating the same matter.

COMPLAINTS

1. The applicant complains in substance that the reduction of his pension violated his right to property.

2. He further complains that the decision to decrease his military pension discriminated against him on the basis of his national origin.

3. Finally, he complains under Article 6 § 1 of the Convention regarding the length of the proceedings before the Constitutional Court.

THE LAW

1. The applicant complains that the decision to decrease his military pension violated his right to property, without invoking any specific provision, and discriminated against him contrary to Article 14 of the Convention. The Court considers that the issue of the applicant’s property rights falls within the ambit of Article 1 of Protocol No. 1.

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) Firstly, 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 thereto. It has no independent existence since its effect comes into play solely in relation to “the enjoyment of 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 that Article is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the rights and freedoms guaranteed by the Convention (see the Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV, p. 1141, § 36).

With respect to the present case, the Court observes that the present application is not limited to the question of whether or not Croatian law operated discriminatorily but also relates to the loss of financial benefits attached to the former Yugoslav People’s Army officers, which are pecuniary rights. The Court therefore considers that the complaint falls to be examined under Article 1 of Protocol No. 1 read together with Article14 of the Convention (see, mutatis mutandis , the Gaygusuz judgment, loc. cit., §§ 39-41 and Domalewski v. Poland (dec.), no. 34610/97, ECHR, 2000).

(b) The Government firstly argues 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 applicant alleges that he had not been receiving any pension in the period between 1 January 1992 and 31 December 1992. Apart form that, he claims to be a victim of the alleged violations of the Convention insofar as his pension has been substantially diminished.

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 Article 1 of Protocol No. 1.

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

(c) The Government further invite the Court to declare this part of the application inadmissible as manifestly ill-founded. In this respect they contend that one should distinguish between such pension systems that are based on payments of contributions and pension systems that are based on the principle of solidarity. While, for the first category, rights under Article 1 of Protocol No. 1 might be implicated, that is not the case with the second category. In this respect they argue that there is no right to a certain amount of pension as the assessment of the pension is not based on any individual contributions to the pension fund. There may only exist an expectation that the amount of a particular person’s pension will be assessed according to the conditions at the time of payments. The Government claim that the applicant had his right to a pension recognised by the federal fund in Belgrade, as the pensions of Yugoslav People’s Army officers had been regulated at the federal level. Therefore, the applicant, as his contributions were not paid to any pension fund in Croatia, but only to the federal fund in Belgrade, may not claim any right to property in respect of the amount of his pension assessed by Croatian authorities. In this respect, not only has the applicant’s right to property not been violated, but, on the contrary, the Republic of Croatia has taken over the payment of his pension, although no such obligation existed on its part. There is no direct link between the contributions paid to the Yugoslav federal pension fund and the payments of his pension by the Croatian authorities, as Croatia has no access to any federal funds pending an agreement on succession between Croatia and Yugoslavia.

The Government further argue that Croatia, as other sovereign States, enjoys the right to independently regulate its pension system and that it has no obligations under international law to ensure to former Yugoslav People’s Army officers the same amount of pension they would have had in the former Yugoslavia.

The applicant disagrees with the Government and argues that his right to a certain amount of pension is derived from his long-term, continuous and bona fide contributions to the pension funds and that the principle of solidarity in respect of his pension rights is not applicable.

The applicant further argues that the decrease of military pensions of former Yugoslav People’s Army officers was motivated by the Government’s intention to discriminate against that category of pensioners.

The Court recalls 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 (Eur. Comm. HR, no. 5849/72, Müller v. Austria Comm. Report, 1.10.1975, D.R. 3, p. 25; no. 10671/83, Dec. 4.3. 1985, D.R. 42, p. 229; Storkiewicz v. Poland (dec.), no 39860/98, ECHR 1999, and Domalewski v. Poland, cited above).

The Court further notes that, for the purposes of Article 14 of the Convention, a difference in treatment is discriminatory if it has no objective and reasonable justification, which means that it does not pursue a “legitimate aim” or that there is no “reasonable proportionality between the means employed and the aim sought to be realised”. Moreover, in this respect the contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see the Gaygusuz judgment, § 42, loc. cit.).

In the present case, the applicant’s pension has been reduced, but it cannot be said that it is inferior to pensions of all other categories of pensioners in Croatia. The applicant has only lost certain privileges that were formerly granted to him as a military official of a state that no longer exists.

In this respect, the Court considers that the reduction of former Yugoslav People’s Army officers’ pensions by the Croatian authorities represents a method of integrating those pensions into the general pension system of Croatia (see, mutatis mutandis , Schwengel v. Germany (dec.), no. 52442, ECHR 2000). Furthermore, the Court considers that States enjoy quite a wide margin of appreciation in regulating their social policy. This also applies in the specific context of the dissolution of the former Yugoslavia and with regard to persons who were 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, has not been divided among the successor States. The Court notes, in that respect, that the Croatian authorities decided to pay pensions to former Yugoslav People’s Army officers and adjusted these pensions with those of other pensioners so that the average pension of an Yugoslav People’s Army officer is still slightly higher than the average pension in Croatia. In view of this the State has not exceeded its margin of appreciation (see Janković v. Croatia (dec.), no. 43440/98, ECHR 2000).

The Court observes that in the present case, by virtue of the Social Security Fund, Rijeka Office decision of 31 December 1992, the applicant lost a certain percentage of his pension. The applicant did, however, retain all the rights attached to his ordinary pension under the general social insurance system. Consequently, the applicant’s pecuniary rights stemming from the contributions paid into his pension scheme remained the same (see, mutatis mutandis , Domalewski v. Poland, cited above).

In these circumstances, the Court does not consider that the applicant’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 did not result in the essence of his pension rights being impaired. Nor does the Court consider that divesting the applicant of a part of his pension amounted to discrimination contrary to Article 14 of the Convention.

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 length of the proceedings before the Constitutional Court exceeds a reasonable time within the meaning of 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 ... hearing within a reasonable time by [a] ... tribunal...”

The Government submitted that the part of the application relating to the events which took place prior to 5 November 1997, when the Convention entered into force in respect of Croatia, was outside the Court’s competence ratione temporis .

In this connection, the Court recalls that Croatia recognised the competence of the European Commission of Human Rights 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”. According to Article 6 of Protocol No. 11 this limitation shall remain valid for the jurisdiction of the Court under that Protocol. It follows that the period to be taken into consideration by the Court starts on 5 November 1997. In order to determine the reasonableness of the length of time in question the Court will have regard to the state of the case on that date (see, among other authorities, the Podbielski v. Poland judgment of 30 October 1998, Reports 1998-VII, p. 3395, § 31).

Furthermore, 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. In this connection they contend that the applicant did not suffer any harm as a result of the length of proceedings before the Constitutional Court. They also maintain that the case was one of significant complexity and that it formed part of a large number of cases relating to the same problem. They further argue that there had been several changes in the laws regulating pensions of former Yugoslav Army officers and that all those laws had been contested before the Constitutional Court by numerous applicants. The Government contend that the outcome of those proceedings was closely related to the outcome of the applicant’s complaint, and that the proceedings concerning the constitutionality of the laws that regulated pensions of former Yugoslav People’s Army officers required detailed reports from and discussions with legal experts of various backgrounds as well as with the representatives of the pensioners themselves. The proceedings also required reports from the Croatian Government and the Ministry of Labour and Social Welfare. The Government also argue that at its session of 19 November 1997 the Constitutional Court decided that prior to examination of the applicant’s case it was necessary to examine another case, concerning the Act incorporating into Croatian law the former federal law regulating the pension insurance for military personnel (the Yugoslav Military Pensions Act), which was closely connected to the issues at stake. Finally, as new legislation regulating pension rights of all Croatian citizens has been enacted as from 1 January 1999, all proceedings concerning the constitutionality of the previous laws that had regulated pension rights of former Yugoslav People’s Army officers were terminated on 20 January 1999. Consequently, on 3 March 1999 the applicant’s complaint was dismissed.

The applicant contends that the length of the Constitutional Court proceedings of more than four and half years cannot be considered reasonable within the meaning of Article 6 § 1 of the Convention.

The reasonableness of the length of these 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 applicants’ 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 judgment of 1 July 1997, Reports 1997-IV, §§ 60 and 55, respectively; and Gast and Popp v. Germany , no 29357/95, § 70, ECHR 2000).

In this respect the Court firstly notes 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 one year, three months and 28 days. At the moment of the ratification the proceedings had been pending for three years, five months and one day.

The applicants’ 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, when so applied it cannot be construed in the same way as for an ordinary court. Its role as guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes 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 v. Germany , cited above, § 75, and Janković v. Croatia , 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 v. Germany , cited above, § 76 and Janković v. Croatia , cited above).

The Court further notes the Government’s explanations on the delays caused by the enactment of several laws concerning the decrease of the former Yugoslav People’s Army officers’ military pensions as well as the prior examination of the Yugoslav Military Pensions Act.

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 one year, three months and 28 days 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 v. Germany , cited above, § 81 and Janković v. Croatia , cited above).

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President