FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48773/99 by Ljubiša ANĐELKOVIĆ against Croatia

The European Court of Human Rights (Fourth Section) , sitting on 30 May 2000 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 8 February 1999 and registered on 14 June 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Croatian citizen, born in 1927 and living in Zagreb (Croatia).

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

The case concerns two distinct issues - the decrease of the applicant’s military pension by Croatian authorities to 63,22 % of what it amounted to in December 1991 and the laws setting the conditions of sale to former Yugoslav People’s Army officers of the flats on which they are former holders of specially protected tenancies.

The applicant served in the Yugoslav People’s Army and in 1978 retired from service. His military pension was assessed 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. The applicant alleges that the Republic of Croatia and the Federal Republic of Yugoslavia agreed on 8 October 1991 in Mohacz (Hungary) that the pensions of  former Yugoslav People’s Army officers who decided to stay in Croatia would be paid by the Federal Republic of Yugoslavia until 31 December 1991, and from then on by the Republic of Croatia, in full amount.

However, on 12 December 1992, the Croatian Social Security Fund, Zagreb Office, assessed the applicant’s pension, as from 1 October 1992, to 63,22 % of the amount he had received until December 1991. The applicant did not appeal that decision.

On 23 June 1998 the applicant lodged a claim with the administrative body, requesting full payment of his pension. As the first instance body failed to decide on his claim, the applicant lodged an appeal. The appellate body also failed to give any decision and on 11 November 1998 the applicant instituted administrative proceedings with the Administrative Court, that are still pending.

During 1991, 1992 and on 18 October 1993 the Croatian Parliament passed several laws on the regulation of pensions of 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 28 December 1998 the applicant lodged a constitutional claim challenging the constitutionality of those laws. On 20 January 1999 the Constitutional Court terminated the proceedings due to the enactment of new legislation that regulates pension rights of all Croatian citizens, including former Yugoslav Army officers.

Secondly, on 25 June 1992 the Croatian parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act, that regulates the sale of publicly-owned flats previously let under specially protected tenancies. Although the vast majority of flats on which former Yugoslav People’s Army officers held specially protected tenancies were owned by the State, by that Act these flats were, for the time being, excluded from sale.

On 31 July 1995 the Croatian parliament enacted some changes to the above Act. Article 20 (a) was added, giving the tenants of State-owned flats the right to buy, but placing an upper limit on the floor area which could be bought at the preferential price paid by all other holders of specially protected tenancies.

The applicant, among many others, challenged that legislation before the Constitutional Court, which, by its decision of 29 January 1997, altered several provisions of the contested law and abolished others, including Article 20 (a).

In the meantime most of the tenants concerned, mainly retired Yugoslav People’s Army officers, had already contracted to buy their flats, and some of these subsequently asked the Constitutional Court to allow them to have their contracts of sale amended in such a way that the preferential price would apply to the full area. The Constitutional Court rejected those claims and expressed the opinion that the contracts of sale of those flats were a matter of civil law and that, in addition to the Specially Protected Tenancies (Sale to Occupier) Act, provisions of the Civil Code were also applicable. That meant that the applicant had to seek protection before the ordinary civil courts.

On 15 January 1998 the applicant instituted proceedings with the Zagreb Municipal Court seeking an alteration of his contract of sale. On 2 April 1998 that court rejected the applicant’s claim and on 20 April 1998 he appealed against that decision. The case is still pending before the appellate court.

COMPLAINTS

1. Firstly, the applicant makes several complaints as to the issue of reduction of his military pension.             

a) He complains that the decision to reduce his pension violated his rights under Articles 1 and 9 of the Convention.

b) He further complains under Article 1 of Protocol No. 1 that the reduction of his pension violated his right to property.

c) He also complains that the Constitutional Court failed to decide on the merits his claim challenging the constitutionality of the laws which served as the basis for the reduction of his pension.

2. Secondly, the applicant complains under Article 14 of the Convention that he was discriminated against and that his human rights were violated in relation to the conditions of sale of the flat on which he is a former holder of a specially protected tenancy.

THE LAW

1. The applicant makes complaints under Articles 1 and 9 of the Convention and Article 1 of Protocol No. 1 concerning the administrative bodies decisions to decrease his military pension. He also alleges that the Constitutional Court failed to decide on the merits his claim concerning the constitutionality of the laws which served as the basis for reduction of his pension.

a) The Court notes that the complaints under Articles 1 and 9 of the Convention are unsubstantiated, and therefore, manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

b) As to the complaint under Article 1 of Protocol No. 1, the Court notes that the proceedings are still pending before the Administrative Court.

It follows that in regard to this complaint the applicant failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention and it must be rejected in accordance with Article 35 § 4.

c) As to the complaint related to the proceedings before the Constitutional Court concerning the constitutionality of the laws which served as the basis for the reduction of the applicant’s pension and the alleged failure of that court to decide the applicant’s claim on the merits, the Court considers that this complaint may raise an issue under Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of the applicant’s complaint under Article 6 § 1 of the Convention regarding the right of access to a court and that it is, therefore, necessary, in accordance with Rule 54 § 3 (b) [Note2] of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complains under Article 14 of the Convention that he was discriminated against and that his human rights were violated in relation to the conditions of sale of the flat on which he is a former holder of a specially protected tenancy.

The Court notes that the proceedings related to that claim are still pending before the domestic courts and that this part of the application is premature. As the applicant has not yet exhausted domestic remedies this part of the application must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints that he was deprived of the right of access to a court within the meaning of Article 6 § 1 of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Vincent Berger Georg Ress Registrar              President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)

[Note2] Change as necessary.