Communicated on 17 November 2014

FIFTH SECTION

Application no. 38775/14 Slavko KRAJNC against Slovenia lodged on 19 May 2014

STATEMENT OF FACTS

The applicant, Mr Slavko Krajn c , is a Slovenian national, who was born in 1952 and lives in Celje . He is represented before the Court by Ms M. Končan Verstovšek , a lawyer practising in Celje .

A. The circumstances of the case

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

On 29 September 2003 the applicant was certified as falling within “category III of work-related disability” as a result of an illness. The applicant was assessed as being able to continue to work in his field of occupation, but he had lost the capacity to work at his previous job .

On 21 February 2005 the Celje Regional Unit of the Pension and Disability Insurance Institute of the Republic of Slovenia (hereinafter “the Institute”) granted the applicant, who had lost his employment but was no longer entitled to receive unemployment benefit , the so-called “allowance for the period of waiting to be re assigned to or employed in a different appropriate job ” (hereinafter “the allowance for the waiting period”) under the then applicable Pension and Invalidity Insurance Act (hereinafter “the 1992 Act”). This monthly allowance in the amount of approximately 390 euros (EUR) was the applicant ’ s only income.

In 2008 the applicants sustained a shoulder injury and on 15 October 2010 his treating physician requested the Institute to reassess the applicant ’ s level of disability and to adjust accordingly his allowance for the waiting period. The Celje Regional Unit of the Institute established that the applicant ’ s capacity for work was in fact further reduced, although the category of his disability remained unchanged. However, in the meantime a new Pension and Invalidity Insurance Act (hereinafter “the 1999 Act”) had entered into force, introducing certain new disability benefits and terminating some of those provided under the 1992 Act including the allowance for the waiting period.

The Celje Regional Unit of the Institute concluded that due to the aggravation of his disability, the applicant ’ s disability benefit should be determined anew on the basis of the 1999 Act.

On 28 June 2011 the Celje Regional Unit of the Institute adopted a decision granting the applicant a disability benefit under the 1999 Act in the amount of approximately EUR 190 per month. According to the new legislation, in cases such as the applicant ’ s , the disability benefit amounted to 40 percent of the disability pension to which he would have been entitled at the time of the occurrence of disability.

On 21 July 2011 the applicant appealed against the Institute ’ s decision, arguing that in determining the amount of his disability benefit , the Institute should have respected the principle of acquired rights. He pointed out that his benefit was considerably reduced, although his level of disability in fact increased, and claimed that such a decision was un lawful.

On 21 October 2011 the Institute (the provision of insurance sector) dismissed the applicant ’ s appeal, confirming that the Celje Regional Unit had correctly calculated the amount of his disability benefit .

On 5 December 2011 the applicant lodged a request for judicial protection of rights arising from disability insurance before the Celje Labour and Social Court, reiterating that the disability benefit granted to him under the 1999 Act, which was more than twice lower than the allowance for the waiting period which he had had been previously receiving, inadmissibly interfered with his constitutionally guaranteed acquired rights . According to the applicant, both decisions adopted by the Institute were unlawful and unconstitutional.

On 26 March 2012 the Celje Labour and Social Court di smissed the applicant ’ s request. The court explained that while recipients of disability -related rights under the 1992 Act retained thei r acquired rights also after the entry into force of the 1999 Act, in the applicant ’ s case a reassessment was made of his disability due to a worsened condition, which meant that his rights were determined anew. In cases where such a fresh assessment was made, the Institute correctly applied the 1999 Act. The labour and social court concluded that, since the Institute had applied the correct legal basis for determining the applicant ’ s disability benefit, there was no violation of the latter ’ s constitutional rights, and neither did the Institute ’ s decision interfere with his acquired rights.

On 25 April 2012 the applicant appealed against the judgment, repeating the complaints he had made before the first-instance court and alleging that he ought to have been informed about what consequences would arise from a request for reassessment of his disability. In that case, he would have “forb idden his physician” to make such a request. Finally, the applicant reiterated that the Institute ’ s decision of 28 June 2011 was unlawful and unconstitutional, as it inadmissibly interfered with his right to social security; the applicant pointed out that he was unable to survive on the newly determined disability benefit .

On 21 June 2012 the Higher Labour and Social Court dismissed the applicant ’ s appeal, confirming the position of the lower court that the applicant ’ s case concerned a change in the level of disability, which required a fresh determination of his disability benefit. In such a case, section 397(3) of the 1999 Act provided that the applicant acquired rights under this A ct. Also, since the applicant ’ s rights had been determined anew, the Higher Labour and Social C ourt concluded that there was no violation of his acquired rights related to social security, and thus no violation of the Constitution.

On 4 September 2012 the applicant lodged an appeal on points of law before the Supreme Court, arguing that he could legitimately expect that the worsening of his disability would not result in a reduction by more than 50 percent of his disability benefit. In this connection he alleged that the Higher Labour and Social Court ’ s view that this reduction did not interfere with his acquired rights or constitute a violation of his constitutional right to social security was arbitrary, as the court had provided no reasoning for this conclusion. The applicant further alleged that the newly determined amount of disability benefit also interfered with his constitutionally guaranteed property right.

On 5 March 2013 the Supreme Court dismissed the applicant ’ s appeal on points of law, finding that the Higher Labour and Social Court sufficiently explained that the change in his level of disability required a fresh determination of his benefit which had to be conducted in accordance with the 1999 Act.

On 21 May 2013 the applicant lodged a constitutional complaint against the Supreme Court ’ s judgment, alleging a violation of his constitutional rights to property and social security. Moreover, he claimed that the interference with his disability benefit , which was his only income, failed the test of proportionality.

On 18 November 2013 the Constitutional Court refused to accept the applicant ’ s complaint for consideration on the merits.

B. Relevant domestic law

1. The Constitution

The rights to private property and social security form part of the constitutionally guaranteed human rights and fundamental freedoms. The relevant provisions of the Constitution provide as follows:

Article 33

(Right to Private Property and Inheritance)

“ The right to private property and inheritance shall be guaranteed. ”

Article 50

(Right to Social Security)

“ Citizens have the right to social security, including the right to a pension, under conditions provided by law.

The state shall regulate compulsory health, pension, disability and other social insurance, and shall ensure its proper functioning.

...”

2. The Pension and Invalidity Insurance Act

(a) The 1992 Act

Section 123 of the 1992 Act regulat ing the allowance for the waiting period provided as follows:

“The right to an allowance for the period of waiting to be reassigned to or employed in a different appropriate job shall be granted to the disabled worker afflicted with disability of category II or III who is entitled to be reassigned to or employed in a different appropriate job or to work part-time, in so far as he or she is not provided such employment.

A disabled worker afflicted with disability of category II or III shall be granted the allowance referred to in the preceding paragraph if he or she registers with the employment office within 30 days of the finality of the decision by which he or she is granted the right to be reassigned to or employed in a different appropriate job or to work part-time.”

(b) The 1999 Act

Section 94 of the 1999 Act which determines the categories of disabled persons entitled to receive the disability benefit provides as follows:

“ (1) The right to disability benefit shall be granted to the insured person who was afflicted with disability of category II after completed 53 years of age, or disability of category III, if his or her capacity for work h as been reduced by less than 50 percent or if he or she can continue to work full-time in his or her occupation but is not capable of working at the job he or she has been reassigned to, if:

- he or she was unemployed and/or not covered by compulsory insurance at the onset of disability ;

- he or she has lost employment independently of his will or through his fault, or

- he or she has terminated his employment of his own will or through his own fault, or

- he or she has obtained employment at another job.

...

(3) An insured person afflicted with disability of category III, if his or her capacity for work h as been reduced by less than 50 percent or if he or she can continue to work full-time in his or her occupation but is not capable of working at the job he or she has been reassigned to, shall have his or her disability benefit assessed as follows:

- in cases from the first indent of the first paragraph of the present section , in the amount of 40 percent of disability pension he or she would be entitled to at the occurrence of disability ,

- in cases from the second indent of the first paragraph of the present section , in the amount of 60 percent of disability pension he or she would be entitled to at the occurrence of disability ,

- in cases f rom the third and fourth indent of the first paragraph of the present section, in the amount of 25 percent of disability pension he or she would be entitled to at the occurrence of disability.”

As regards the enjoyment of disability-related rights acquired according to the former regulations, section 397 of the 1999 Act provides as follows:

“ (1) The recipients of the rights on grounds of the remaining capacity for work ( disability of category II or III) asserted according to the regulations which were applicable by the date stipulated in section 446 hereof, shall retain such rights in an unchanged scope also after the said date.

...

(3) The recipients of the rights as per the first paragraph of this section may acquire the rights hereunder only in the event of worsening of the already established invalidity or occurrence of a new one.”

COMPLAINT

The applicant complains under Article under Article 1 of Protocol No. 1 that by reducing his disability benefit for more than 50 percent, although his level of disability increased, the domestic authorities inadmissibly interfered with his acquired property rights .

QUESTION TO THE PARTIES

Having regard to the fact that the applicant ’ s disability benefit was reduced by more than fifty percent, although it was found that his level of disability increased and despite the fact that he would have retained his previous benefit had it not been for the request to reassess the level of his disability, was there, contrary to Article 1 of Protocol No. 1 to the Convention, a disproportionate and excessive burden imposed on the applicant (see Kjartan Ásmundsson v. Iceland , no. 60669/00, § 45 , ECHR 2004 ‑ IX )?