In the case of Damjanac v. Croatia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefčvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Mřse,
Ksenija Turković,
Dmitry Dedov, judges,
and Sřren Nielsen, Section Registrar,
Having deliberated in private on 1 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
52943/10) against the Republic of Croatia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Croatian and Serbian national, Mr Borisav Damjanac
(“the applicant”), on 24 August 2010.
The Croatian Government (“the Government”) were
represented by their Agent, Ms Š. Stažnik.
The applicant alleged in particular that stopping
payment of his YPA military pension for a period of thirteen months after he
had changed his place of residence to Serbia, had been arbitrary and discriminatory
and thus contrary to Article 1 of Protocol No. 1, taken alone and in
conjunction with Article 14 of the Convention.
On 21 March 2012 the complaints concerning the stopping
of payment of the applicant’s pension and discrimination in that respect were
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
On 17 January 2013 the Government of Serbia was
informed of the case and invited to exercise their right to intervene if they
wished to do so. On 1 March 2013 the Government of Serbia informed the Court
that they did not wish to exercise their right to intervene in the present
case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1926 and lives in Belgrade.
A. Background
to the case
1. Military pensions in the former Socialist Federal Republic of Yugoslavia
The general pension system of the former
Socialist Federal Republic of Yugoslavia (hereinafter “the SFRY”) was set up on
the principle of territoriality. This meant that each federal entity, namely
the six republics (Croatia, Slovenia, Bosnia and Herzegovina, Serbia, Macedonia
and Montenegro) and two autonomous provinces (Vojvodina and Kosovo), had their
own pension funds, which were independent of federal government and were
responsible for the collection of contributions and the payment of pensions to
all individuals who had been working on the territory of the respective
republic or province. The pension system was based on the “pay-as-you-go” model
and the principle of inter-generational solidarity, which was essentially based
on the payment of mandatory contributions during the years of employment and
then receiving the pension by instalments once retired.
The military pension system differed, in that it
was centralised at the federal level. On 1 January 1973 under, at the relevant
time, the Military Personnel Pension and Invalidity Insurance Act (Zakon o
mirovinskom i invalidskom osiguranju vojnih obveznika) a federal pension
fund was established for employees of the Yugoslav People’s Army (hereinafter “the
YPA”) with its registered headquarters in Belgrade. Contributions to this fund
were paid from the federal budget, and the fund then paid pensions to military
pensioners, irrespective of the location of their military service or where
they lived once retired.
2. YPA military pensions in Croatia
On 25 June 1991 the Croatian Parliament (Sabor
Republike Hrvatske) declared Croatia independent of Yugoslavia, and on 8 October 1991 all relations between Croatia and the SFRY federal Government were
dissolved. The SFRY Military Personnel Pension and Invalidity Insurance Act was
incorporated into the Croatian legal system by the Military Personnel Federal
Pension, Invalidity Insurance and Child Support Legislation (Acceptance in the Republic
of Croatia as Republic Law) Act (Zakon o preuzimanju saveznih zakona iz
oblasti mirovinskog i invalidskog osiguranja i doplatka za djecu vojnih
osiguranika koji se u Republici Hrvatskoj primjenjuju kao republički
zakoni), enacted by the Parliament on 26 June 1991.
On 23 July 1992 the Government of Croatia
enacted a decree on “Pension and Invalidity Rights of Persons Whose Active Military
Service in the YPA Terminated Prior to 31 December 1991” (Uredba o
ostvarivanju prava iz mirovinskog i invalidskog osiguranja osoba kojima je
prestalo svojstvo aktivne vojne osobe u bivšoj JNA do 31. prosinca 1991.;
hereinafter: “the Military Pensions Decree”). The Military Pensions Decree laid
down conditions for recognition of the right to advance payments of pensions (akontacija)
to former YPA military personnel, provided that they had terminated their
military service prior to 31 December 1991, but had not obtained pension rights
prior to that date, and that they met all the necessary conditions to be granted
a pension under the Military Personnel Pension and Invalidity Insurance Act
(see paragraph 8 above). The Military Pensions Decree set out three additional
complementary conditions: (1) residence in Croatia, (2) Croatian nationality,
and (3) that the person concerned had made himself
available for service in the Croatian army prior to 31 December 1991 and
was not suspected of an offence against Croatia. The Croatian Republic Workers’
Pension and Invalidity Insurance Fund (Republički fond mirovinskog
i invalidskog osiguranja radnika Hrvatske; hereinafter “the Republic Workers’ Fund”) was assigned to make the necessary arrangements
under this Decree.
On the same day the Government of Croatia also
enacted a decree on “Payment of Pensions to Former SFRY Republic Pension Beneficiaries”
(Uredba o isplati mirovina korisnicima koji su mirovinu ostvarili u
republikama bivše Socijalističke Federativne Republike Jugoslavije).
Under that decree all residents of Croatia who had been granted pensions in
other republics of the former SFRY, except Slovenia, which had at the time also
dissolved its relations with the SFRY federal government, were entitled to payment
of their pensions by Croatia. The Republic Workers’ Fund was ordered to pay
pensions from the collected contributions which Croatia was not paying to
pensioners residing in other republics of the former SFRY due to the ending of
financial transfers.
On 6 October 1993 the Croatian Parliament
enacted the Yugoslav People’s Army Personnel Pensions Act (Zakon o
ostvarivanju prava iz mirovnskog i invalidskog osigurnja pripadnika bivše JNA),
which set aside the 1992 Decree (see paragraph 10 above) and part of the 1991
transitional legislation (see paragraph 9 above). Under this Act Croatia
assumed responsibility for payment of YPA military pensions obtained prior to
8 October 1991, and for the granting of pensions to YPA military personnel
whose service in Croatia had terminated prior to 31 December 1991.
Former YPA military personnel who had obtained
pension rights under the former SFRY pension regime prior to 8 October 1991 had
the right to have their pension paid by Croatia if their pension from the
former federal fund was no longer being paid. Two further conditions were laid
down: residence in Croatia and that the person concerned was not being prosecuted
for certain criminal offences against Croatia, listed in section 2 of the
Act. The Republic Workers’ Fund was tasked with
enforcement of the Act.
The Act was set aside by the Pension Insurance
Act (Zakon o mirovinskom osiguranju), which was enacted on 10 July 1998
and came into force on 1 January 1999. In the period relevant to this case it
was amended several times (see paragraphs 50-53 below). The Pension Insurance
Act regulated the compulsory pension insurance scheme on the basis of the
principle of inter-generational solidarity (section 2 § 1). It established the
Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje), which
was tasked with the management of pension affairs (section 6) thus replacing
the previous Republic Workers’ Fund (section 187 §§ 1 and 3). Accordingly,
the Croatian Pension Fund was tasked with the collection of pension
contributions and payment of pensions and with the observance of obligations
under international agreements on pensions (section 130). Under the Pension
Insurance Act payment of pensions abroad was possible only under either an
international agreement or a reciprocal agreement (section 88).
The Pension Insurance Act also provided that funds
for payment of pensions to YPA military pensioners should be secured in the
State’s budget, and that the necessary contributions should be paid to the
Croatian Pension Fund on a monthly basis (section 152 § 1). For all Croatian
nationals the Pension Insurance Act recognised pensionable years of employment
in the period prior to 8 October 1991 under the Military Personnel Pension and
Invalidity Insurance Act (see paragraphs 8 and 9 above) as pensionable years
of employment (section 186).
By an amendment of 29 November 2001 the pensions
of, inter alia, YPA military pensioners were reduced and the Croatian
Pension Fund was ordered to set the amended levels of their pensions.
3. Croatian treaties with Serbia
On 15 September 1997 Croatia and the then
Federal Republic of Yugoslavia (later Serbia and Montenegro) signed a Social
Insurance Treaty (Ugovor o socijalnom osiguranju), hereinafter “the Social
Insurance Treaty”), which came into force on 1 May 2003. The Social Insurance Treaty
listed the relevant domestic legislation to which it was applicable, namely
health insurance and health protection legislation; pension and invalidity
insurance legislation; legislation on work-related accidents and work-related
illnesses; and unemployment benefits. It was applicable to all persons in the two
countries who had rights and duties under the relevant domestic legislation.
The right to payment of a pension abroad existed irrespective of the place of
residence of the pension beneficiaries within one of the contracting States.
The Republic Workers’ Fund was designated the
competent liaison authority in Croatia concerning all pension issues (see
paragraph 54 below).
According to the Government, after the
dissolution of the former SFRY, Serbia maintained a dual pension system for civilian
and military pensioners, and stopped paying YPA military pensions to pensioners
residing in Croatia. Only in January 2012 was a pension reform carried out in Serbia which had the effect of integrating the military pension fund into the civilian
pension and invalidity insurance fund. On an unspecified date the Serbian
authorities informed the Croatian pension authorities of this change. They also
indicated that they would pay what formerly were military pensions to pensioners
residing abroad under the relevant treaties on social insurance or reciprocal
agreements.
On 29 June 2001 the republics of the former SFRY
signed the Agreement on Succession Issues (Ugovor o pitanjima sukcesije,
hereinafter “the Succession Agreement”), which came into force on 2 June 2004
(see paragraph 55 below).
Annexe E to the Succession Agreement dealt with
pensions. It was based on the principle of acquired rights, in that rights acquired
under one system must be acknowledged and respected in another. Article 1
established the said principle in respect of the pension rights acquired under
the former republics’ pension regime (see paragraph 7 above), while Article 2
dealt with military pensions under the former federal regime (see paragraph 8
above). The latter provision stipulated that the State which had recognised the
right to payment of the pensions to former SFRY military personnel should continue
to pay pensions to all its nationals, irrespective of their place of residence.
In cases where a person was a national of more than one republic of the former
SFRY, the pension should be paid by the State where that person resided. This
pension payment regime differed from the regime established for civilian
pensions under Article 1 of Annexe E to the Succession Agreement, which
provided that the State which had recognised the pension rights and which paid
the pensions should continue with the payments entirely irrespective of the
nationality or place of residence of the pension beneficiaries.
B. The
applicant’s personal circumstances
The applicant served as a military officer in
the YPA between 1941 and 1979, when he retired. On 16 May 1979 the SFRY federal
pension fund for retired YPA employees authorised the applicant’s entitlement to
a military pension. At that time the applicant was residing in Dubrovnik, Croatia.
On 19 June 1992 the applicant requested the Dubrovnik office of the Republic Workers’ Fund (Republički
fond mirovinskog i invalidskog osiguranja radnika Hrvatske,
Područna služba u Dubrovniku) to recognise his entitlement to a military
pension under the new Croatian legislation. The applicant substantiated his
request by submitting evidence of his place of residence in Croatia at an
address in Dubrovnik, evidence of Croatian citizenship, and a document from the
Dubrovnik Municipal Court (Općinski sud u Dubrovniku), confirming
that no criminal proceedings against him had been instituted.
On 7 July 1992 the Dubrovnik Office of the
Republic Workers’ Fund recognised the applicant’s entitlement
to a military pension, as established under the former SFRY Military
Personnel Pension and Invalidity Insurance Act (see paragraph 47 below). It found that the applicant had Croatian citizenship and a
place of residence in Croatia, and that the competent domestic authorities had
not instituted criminal proceedings against the applicant for any offence
against Croatia.
On 12 December 1992, acting ex officio, the
Dubrovnik Office of the Republic Workers’ Fund
established the amount of the applicant’s pension under the Military Pensions
Decree. The pension was to be paid to the applicant as long as the necessary
requirements existed.
On 6 May 1994 the Military Social Insurance Fund
of the then Federal Yugoslav Republic Army in Belgrade, Serbia, ordered that
payment of the applicant’s military pension should be stopped, on the grounds
that they had been informed by the Croatian authorities that the applicant had
been granted a pension in Croatia.
According to the applicant, in October 1998 he
visited his son in Belgrade, Serbia, and decided to stay with his son for a
longer period. He continued to receive payments of his pension through a
representative in Dubrovnik.
On 9 June 2003 the applicant informed the Dubrovnik office of the Croatian Pension Fund (Područna služba u Dubrovniku Hrvatskog
zavoda za mirovinsko osiguranje) that he had changed his place of residence
to Belgrade, Serbia, and requested that his pension be paid to his new address.
He submitted evidence of residence in Belgrade and details of his bank account
in Serbia.
On 30 September 2003 the Croatian Pension Fund stopped
payment of the applicant’s pension. It found that the Social Insurance Treaty with
Serbia did not cover YPA military pensions, and that there was no reciprocal
agreement with Serbia in that respect, as required under the relevant domestic
law, for the payment of pensions abroad. Pension payments were stopped with
effect from 1 October 2003.
On 16 December 2003 the applicant lodged an
appeal with the Appeal Council of the Executive Council of the Croatian Pension
Fund (Žalbeno vijeće Upravnog vijeća Hrvatskog zavoda za
mirovinsko osiguranje) arguing that there was no legal ground for his
pension to be stopped. He contended that when his pension rights had been
recognised under the Military Pensions Decree he had obtained the right to
receive the pension from the Republic Workers’ Fund, and that
his status was therefore equal to that of other old-age pensioners. He
also complained that he had not been able to obtain his pension in Serbia,
since payment of his pension there had been stopped on the grounds that his entitlement
to a pension had been recognised in Croatia. Finally, the applicant explained
that the pension which had been stopped was his only income.
On 17 March 2004 the applicant lodged an
administrative action in the Administrative Court (Upravni sud Republike
Hrvatske) complaining that the Croatian Pension Fund had failed to decide
on his appeal against the first-instance decision of the Dubrovnik office of
the Croatian Pension Fund.
In his administrative action the applicant
reiterated that by recognising his entitlement to a pension under the Military
Pensions Decree he had the same status as all other pensioners in Croatia who had been receiving pensions from the Croatian Pension Fund. He explained that
he had submitted his request for payment of the pension to Serbia under the
Social Insurance Treaty and that the stopping of his pension had been unlawful.
The applicant also complained that he and his wife had no other financial means
now that his pension had been discontinued.
The Administrative Court invited the applicant
to substantiate his action further on 18 March 2004. The applicant complied with
this request, and submitted a supplemented administrative action on 3 September
2004, reiterating his previous arguments.
On 5 October 2004 the applicant changed his
place of residence to his old address in Dubrovnik and the following day he
informed the Dubrovnik Office of the Croatian Pension Fund, asking for payment
of his pension to be resumed. The applicant also pointed out that the Croatian
Pension Fund had never decided on his appeal against the decision to stop the
payment of his pension.
The Appeal Council of the Executive Council of
the Croatian Pension Fund dismissed the applicant’s appeal against the
first-instance decision of the Dubrovnik Office of the Croatian Pension Fund as
ill-founded on 24 November 2004, endorsing the reasoning of the first-instance
decision.
On 10 January 2005 the Dubrovnik office of the
Croatian Pension Fund resumed payment of the applicant’s pension. It found that
the applicant had changed his place of residence to Croatia, and that all other
requirements under the relevant domestic law had been met. The payment of the
applicant’s pension was to be resumed with effect from 1 November 2004.
On 12 April 2006 the Administrative Court
invited the applicant to explain whether he wanted to pursue his administrative
action of 17 March 2004, since the Appeal Council of the Executive Council
of the Croatian Pension Fund had decided on his appeal in the meantime.
On 13 November 2006 the applicant informed the Administrative Court that he wanted to pursue his administrative action. Moreover, he
indicated that he wanted to extend it to the second-instance decision of the
Appeal Council of the Executive Council of the Croatian Pension Fund of
24 November 2004. The applicant again argued that the change of his place
of residence had not warranted in any respect, legal or factual, stopping the payment
of his pension, and that therefore depriving him of his pension for the period
between 1 October 2003 and 31 October 2004 had been unlawful.
On 8 March 2007 the Administrative Court
dismissed the applicant’s administrative action as ill-founded. The relevant
part of the decision reads:
“The reasoning of the impugned
decision, and of the first-instance decision, is based on the fact that the
plaintiff’s request for payment of the recognised military pension which he had
obtained as a YPA employee prior to 8 October 1991 had been refused, because he
had a place of residence in Serbia ... and the Social Insurance Treaty between
the Republic of Croatia and the Federal Republic of Yugoslavia did not cover
military pensions of former YPA military personnel obtained through the
military [pension] fund prior to 8 October 1991. Between the Republic of Croatia and Serbia and Montenegro there is no reciprocal agreement in payment of
military pensions, so the [plaintiff’s] pension cannot be paid in Serbia ...
In view of what is discernible from
the case file this court finds that there has been no breach of law to the
detriment of the plaintiff.
In this specific case the reasons
adduced by the respondent body and the first-instance body are valid. This
court finds that it was correctly held by the respondent body that it was not
possible for military pensions to be paid abroad ... since it was impossible
under either the Treaty or Croatian pension legislation. Payment of a pension
abroad is possible under an international treaty or on the basis of a reciprocal
agreement, which is not the situation in the present case.”
On 11 May 2007 the applicant lodged a
constitutional complaint with the Constitutional Court (Ustavni sud
Republike Hrvatske). He contended that there had been no legal ground for stopping
payment of thirteen of his pension instalments, and that his change of place of
residence should not have had any adverse effects on his pension rights. In his
view this had created an inequality before the law.
The applicant supplemented his constitutional
complaint on 5 June 2007, reiterating his previous arguments.
On 11 March 2010 the Constitutional Court
declared the applicant’s constitutional complaint inadmissible as manifestly
ill-founded. The decision of the Constitutional Court was served on the
applicant on 21 May 2010.
On 24 February 2012 the applicant informed the Dubrovnik office of the Croatian Pension Fund that he had changed his place of residence
to Belgrade, and asked for the pension to be paid to him in Serbia.
On 27 February 2012 the information submitted by
the applicant was registered in the information system of the Croatian Pension
Fund. Since March 2012 the applicant’s pension has been paid to him in
Belgrade, Serbia.
II. RELEVANT DOMESTIC LAW
A. Constitution
The relevant provisions of the Constitution of
the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos.
56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated
text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010,
85/2010) read as follows:
Article 14
“Everyone in the Republic of Croatia shall enjoy rights and
freedoms regardless of their race, colour, sex, language, religion, political
or other belief, national or social origin, property, birth, education, social
status or other characteristics.
All shall be equal before the law.
Article 16
Rights and freedoms may be restricted only according to law in
order to protect the freedoms and rights of others, legal system, public morals
and health.
Any restriction of the freedoms and rights must be
proportionate with the interest involved in a particular case.
Article 48
The right of ownership shall be guaranteed.
Article 140
International agreements in force which have been concluded and
ratified in accordance with the Constitution and made public shall be part of
the internal legal order of the Republic of Croatia and shall have precedence
in terms of their legal effects over the [domestic] statutes ...”
The relevant part of section 62 of the
Constitutional Court Act (Official Gazette no. 49/2002, of 3
May 2002, Ustavni zakon o Ustavnom sudu Republike Hrvatske) reads as
follows:
Section 62
“1. Anyone may lodge a constitutional complaint with the
Constitutional Court if he or she deems that the individual act of a state
body, a body of local and regional self-government, or a legal person with
public authority, concerning his or her rights and obligations, or a suspicion
or an accusation of a criminal act, has violated his or her human rights or
fundamental freedoms or his or her right to local and regional self-government
guaranteed by the Constitution (hereinafter: a constitutional right) ...
2. If
another legal remedy exists in respect of the violation of the constitutional
right [complained of], a constitutional complaint may be lodged only after that
remedy has been used.”
B. Croatian
pension legislation
The relevant provisions of the Military Personnel
Federal Pension and Invalidity Insurance Legislation (Acceptance) Act (to be applicable
in the Republic of Croatia as Republic Law) (Zakon o preuzimanju saveznog
zakona iz oblasti mirovinskog i invalidskog osiguranja vojnih osiguranika koji
se u Republici Hrvatskoj primjenjuje kao republički zakon, Official
Gazette nos. 53/1991, 73/1991, 18/1992, 71/1992), enacted on 26 June 1991,
read as follows:
Section 1
“The Military Personnel Pension and Invalidity Insurance Act
(SFRY Official Gazette nos. 7/1985, 74/1987, 20/1989) shall be accepted and
applied in the Republic of Croatia as the law of the republic.
Section 5
The federal financial rights and obligations under the
legislation referred to in section 1 of this Act shall become rights and
obligations of the budget of the Republic of Croatia.”
The relevant provisions of the Decree on Pension
and Invalidity Rights of Persons Whose Active Military Service in the former
YPA Terminated Prior to 31 December 1991 (Uredba o ostvarivanju prava iz
mirovinskog i invalidskog osiguranja osoba kojima je prestalo svojstvo aktivne
vojne osobe u bivšoj JNA do 31. prosinca 1991, Official Gazette nos. 46/1992,
71/1992), enacted on 23 July 1992, provided:
Section 1
“A person who ceases to be an active
officer in the YPA in the territory of the Republic of Croatia prior to 31
December 1991, and who has not prior to that date obtained entitlement to a
pension and invalidity insurance, may obtain that entitlement if he fulfils the
conditions to obtain it concerning pension and invalidity insurance in
accordance with the Military Personnel Pension and Invalidity Insurance Act
(Official Gazette nos. 53/91, 73/91, 18/92) and if:
- he has residence on the territory of the Republic of Croatia;
- he has Croatian nationality;
- he made himself available for service in the Croatian army
prior to 31 December 1991, and criminal proceedings have not been instituted
against him by the competent authorities in connection with preparation or commission
of offences under Head XX of the Criminal Code of the Republic of Croatia.
Section 4
The tasks under this Decree shall be carried out by the
Republic Workers’ Fund according to law.”
The relevant provisions of the Decree on the
Payment of Pensions to Republic Pension Beneficiaries in the former SFRY (Uredba
o isplati mirovina korisnicima koji su mirovinu ostvarili u republikama bivše
Socijalističke Federativne Republike Jugoslavije, Official Gazette no.
46/1992), enacted on 23 July 1992, provided:
Section 1
“The beneficiaries of pensions ... with residence on the
territory of the Republic of Croatia who have obtained pension entitlement in
the republics of the former SFRY, apart from Slovenia, and who have been
receiving payments in the Republic of Croatia, shall receive payments starting
from the first day of the month after that in which the payment was halted due
to the termination of financial transfers. The payment shall be made by the
Republic Workers’ Fund ...
Section 2
The funds for payment of the pensions referred to in section 1
of this Decree shall be secured from the resources of the Republic Workers’
Fund which the Republic Workers’ Fund is unable to pay to pension beneficiaries
in the republics of the former SFRY because of the discontinuance of financial
transfers.
Section 4
The pension payments referred to in section 1 of this Decree
shall be made until financial transfers between the Republic of Croatia and the
republics of the former SFRY are resumed or the payment of the pensions
otherwise settled.”
The relevant provisions of the Yugoslav People’s
Army Personnel Pensions Act (Zakon o ostvarivanju prava iz mirovnskog i
invalidskog osigurnja pripadnika bivše JNA, Official Gazette no. 96/1993),
enacted on 6 October 1993, read as follows:
Section 1
“This Act concerns the methods and conditions for recognition
of the pension rights, ..., of former YPA personnel, acquired prior to 8
October 1991, ...
Section 2
A beneficiary who has acquired the right to a pension ... in
the Military Personnel Social Insurance Federal Fund prior to 8 October 1991,
and if the payment of his pension and other payments from the federal fund has
been halted, shall have that right recognised ... if he meets the following
conditions:
- he has residence on the territory of the Republic of Croatia;
- he acquired the right to a pension in the Military
Personnel Social Insurance Federal Fund prior to 8 October 1991;
- criminal proceedings have not been instituted against him by
the competent authorities in connection with offences under Head XIV, XV and
XVIII of the Basic Criminal Code of the Republic of Croatia ... Head XIX of the
Criminal Code of the Republic of Croatia ... and the Offences of Incitement and
Terrorism Against the Sovereignty and Territorial Integrity of the Republic of
Croatia Act ... “
Section 9
The Republic Workers’ Fund shall carry out the enforcement of
this Act.
Section 11
This Act shall substitute:
1. The Act on Acceptance of the Military Personnel Federal
Pension and Invalidity Insurance Legislation Acceptance Act (to be applicable in
the Republic of Croatia as Republic Law) (Official Gazette nos. 53/1991,
73/1991, 18/1992, and 71/1992) - sections 3b, 3c and 3e,
2. The Decree on Realisation of the Pension and Invalidity
Rights of Persons Whose Active Military Service in the former YPA Terminated
prior to 31 December 1991 (Official Gazette nos. 46/1992, 71/1992) ... “
The relevant provisions of the Pension Insurance
Act (Zakon o mirovinskom osiguranju, Official Gazette no. 102/1998),
enacted on 10 July 1998 (came into force on 1 January 1999), provided:
Section 2
“(1) This Act regulates the compulsory pension insurance on the
basis of the principle of inter-generational solidarity .. “
Section 6
To assure the rights of employees, ... and other insured
persons under this Act, the Croatian Pension Fund (hereinafter “the Fund”)
shall be established.
Section 88
Payment of pensions abroad shall be made under international
agreements or on the basis of a reciprocal agreement.
Section 130
“The Fund shall:
1) carry out all tasks concerning the exercise of pension
insurance rights,
2) collect pension contributions,
3) secure enforcement of international treaties on pension
insurance ...
Section 152
(1) The Republic of Croatia shall secure resources in its
budget for part of the pension insurance obligations arising out of the
recognition of privileged pensions, namely for ...
8) pensions for former YPA personnel and for their families after
their death ...
Section 186
(1) Pensionable years of employment prior to 8 October 1991
under the Military Personnel Pension and Invalidity Insurance Act shall be
recognised for Croatian nationals as pensionable years of employment when
obtaining pension rights under this Act ...
Section 187
(1) On the day this Act comes into force the Croatian Republic
Workers’ Pension and Invalidity Insurance Fund ... shall cease its activities ...
(3) On the day this Act comes into force the Croatian Pension
Fund, which shall inherit the resources, rights and obligations of the above
Funds .... shall begin its activities.
Section 194
This Act replaces: ...
5) The Yugoslav People’s Army Personnel Pensions Act (Official
Gazette no. 96/1993) ...”
The Pension Insurance (Amendments) Act (Zakon
o dopunama Zakona o mirovinskom osiguranju, Official Gazette no.
109/2001), enacted on 29 November 2001, provided:
Section 1
“In the Pension Insurance Act (Official Gazette nos. 102/1998,
127/2000, 59/2001) after section 172 there shall be section 172a, which
provides
Section 172a
(1) The pension beneficiaries of the former YPA ... shall have
their pension payments reduced proportionally to their incomes ...
Section 2
The Croatian Pension Fund shall ex officio issue a
decision concerning pension reduction under section 1 of this Act.”
The relevant provision of the Pension Insurance (Amendments)
Act (Zakon o izmjenama i dopunama Zakona o mirovinskom
osiguranju, Official Gazette no. 92/2005), enacted on 15 July 2005,
provided:
Section 5
“In section 88 [of the Pension Insurance Act] after the words
“agreement” words “on social insurance” shall be added.”
The Pension Insurance (Amendments) Act (Zakon
o izmjenama i dopunama Zakona o mirovinskom osiguranju,
Official Gazette no. 121/2010), enacted on 22 October 2010, provided:
Section 16
“Section 88 shall be amended as follows: ...
(2) Payment of pensions and other benefits abroad shall be made
under international agreements on social insurance or on a reciprocal basis, or
under a decision of the [Croatian Pension] Fund granting the right to receive
payments abroad in a State with which there is no international agreement or
reciprocity.”
C. The
relevant treaties with Serbia
The relevant provisions of the Social Insurance Treaty
between the Republic of Croatia and the Federal Republic of Yugoslavia (Zakon
o potvrđivanju Ugovora između Republike Hrvatske i Savezne
Republike Jugoslavije o socijalnom osiguranju, Official Gazette -
International treaties no. 14/2001), signed on 15 September 1997 (came into
force on 1 May 2003), provide:
Article 2
Relevant legislation
“(1) This Treaty concerns:
the Croatian legislation on:
1) health insurance and health protection,
2) pension and invalidity insurance,
3) insurance against work-related accidents and work-related
illnesses,
4) unemployment insurance ...
(2) This Treaty is applicable to legislation integrating,
amending or supplementing the legislation referred to in § 1 of this Article.
Article 3
Applicability ratione personae
(1) This Treaty applies to:
a) all persons to whom the relevant legislation of one or both
of the contracting States applies or has applied ...
Article 5
Equality of territories
(1) Pensions, and other monetary benefits, apart from
unemployment benefits, under the relevant legislation in one of the contracting
States, cannot be reduced, stopped, seized or confiscated on the ground of the
beneficiary’s place of residence on the territory of one of the contracting
States, unless this Treaty provides otherwise ...
Article 28
Liaison bodies
“To improve the enforcement of this Treaty, particularly with a
view to easier and faster communication between authorities in the contracting
States, the liaison body shall be:
in Croatia ... the Croatian Republic
Workers’ Pension and Invalidity Insurance Fund in respect of the
relevant legislation referred to in Article 2 § 1 (2) and (3) ...
Article 29
Obligations of the responsible bodies, legal and
administrative assistance ...
(5) The responsible bodies of the contracting States may, in
the enforcement of this treaty, make direct contact among themselves, as well
as [contact] with interested individuals and their representatives ...”
Article 37
Settlement of disputes
“All disputes relating to the application or interpretation of
this Treaty shall be dealt with by the competent bodies in the contracting States.”
Annexe E to the Succession Issues Agreement (Ugovor
o pitanjima sukcesije; Official Gazette - International treaties no.
2/2004), signed on 29 June 2001 (came into force on 2 June 2004), reads:
Pensions
Article 1
“Each State shall assume responsibility for and regularly pay
legally authorised pensions funded by that State in its former capacity as a
constituent Republic of the SFRY, irrespective of the nationality, citizenship,
residence or domicile of the beneficiary.
Article 2
Each State shall assume responsibility for, and regularly pay,
pensions which are due to its citizens who were civil or military servants of
the SFRY, irrespective of where they are resident or domiciled, if those
pensions were funded from the federal budget or other federal resources of the
SFRY; provided that, in the case of a person who is a citizen of more than one
State
(i) if that person is domiciled in one of those States, payment
of the pension shall be made by that State, and
(ii) if that person is not domiciled in any State of which that
person is a citizen, payment of the pension shall be made by the State in the
territory of which that person was resident on 1 June 1991.
Article 3
The States shall, if necessary, conclude bilateral arrangements
for ensuring the payment of pensions pursuant to Articles 1 and 2 above to
persons located in a State other than that which is paying the pensions of
those persons, for transferring the necessary funds to ensure payment of those
pensions, and for the payment of pensions at a level proportionate to the
contributions made. Where appropriate, the conclusion of such definitive
bilateral arrangements may be preceded by the conclusion of interim
arrangements for ensuring the payment of pensions pursuant to Article 2. Any
bilateral agreements concluded between any two of the States shall prevail over
the provisions of this Annexe and shall resolve the issue of mutual claims
between the pension funds of the States relating to payments of pensions made
before such agreements entered into force.”
D. Other
international law
The relevant provisions of International Labour
Organisation Convention 102 concerning Minimum Standards of Social Security (Konvencija
102 Međunarodne organizacije rada o najnižim standardima socijalne
sigurnosti, Official Gazette - International treaties no. 1/2002), in force
in Croatia as of 8 October 1991, read:
Article 68
Part XII Equality of Treatment of Non-National Residents
Article 68
“1. Non-national residents shall have the same rights as
national residents: Provided that special rules concerning non-nationals and
nationals born outside the territory of the Member may be prescribed in respect
of benefits or portions of benefits which are payable wholly or mainly out of
public funds and in respect of transitional schemes.
2. Under contributory social security schemes which protect
employees, the persons protected who are nationals of another Member which has
accepted the obligations of the relevant Part of the Convention shall have,
under that Part, the same rights as nationals of the Member concerned: Provided
that the application of this paragraph may be made subject to the existence of
a bilateral or multilateral agreement providing for reciprocity.
Part XIII Common Provisions
Article 69
A benefit to which a person protected would otherwise be
entitled in compliance with any of Parts II to X of this Convention may be
suspended to such extent as may be prescribed:
(a) as long as the person concerned is absent from the
territory of the Member ... “
The relevant provision of International Labour Organisation
Convention 48 concerning the Establishment of an International Scheme for the
Maintenance of Rights under Invalidity, Old-Age and Widows’ and Orphans’
Insurance (Konvencija 48 Međunarodne organizacije rada o utemeljenju
međunarodnog sustava očuvanja prava iz osiguranja za slučaj
invalidnosti, starosti i smrti, Official Gazette - International treaties
no. 11/2003, hereinafter “ILO Convention 48”), in force in Croatia as of
8 October 1991, reads:
Article 10
“(1) Persons who have been affiliated to an insurance
institution of a Member and their dependants shall be entitled to the entirety
of the benefits the right to which has been acquired in virtue of their
insurance:
(a) if they are resident in the territory of a Member,
irrespective of their nationality;
(b) if they are nationals of a Member, irrespective of their
place of residence ... “
The Vienna Convention on the Law of Treaties of
23 May 1969 (Bečka konvencija o pravu međunarodnih ugovora,
Official Gazette - International treaties no. 12/1993) provides:
Article 27
Internal law and observance of treaties
“A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty ... “
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.
1, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
The applicant complained that the stopping of
the payment of his YPA military pension for a period of thirteen months, after
he had changed his place of residence to Serbia, had been arbitrary and
discriminatory. He relied on Article 1 of Protocol No. 1, taken alone and in
conjunction with Article 14 of the Convention, which read as follows:
Article 14 of the Convention
“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.”
Article 1 of Protocol No. 1
“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. Admissibility
1. Compatibility ratione
materiae
(a) The
parties’ arguments
The Government submitted, relying on the Court’s
case-law in Carson and Others v. the United Kingdom [GC], no. 42184/05,
ECHR 2010, and Grudić v. Serbia, no. 31925/08, 17 April 2012,
that in the period in which the payment of the applicant’s pension had been stopped
the applicant did not have a right to payment of his pension, and therefore did
not have possessions within the meaning of Article 1 of Protocol No. 1.
They stressed that the applicant was a YPA military pensioner and that the
payment of his pension abroad would only have been possible under the relevant
domestic law if there had been an international treaty or a reciprocal
agreement. However, there was no such international treaty or reciprocal
agreement between Croatia and Serbia at the time. In the Government’s view it
had been crucial to make a distinction between the right to a pension and the
right to payment of a pension. In Croatia the applicant had only had the right
to payment of the pension. This right existed as long as the necessary
conditions were satisfied and it was impossible to make the payments abroad due
to the absence of a treaty or reciprocal agreement, which the applicant had
known or ought to have known.
The applicant disagreed with the Government,
arguing that Croatia had recognised his right to payment of the YPA military
pension and that there had been no legal ground for the payments to be stopped.
(b) The Court’s assessment
Having regard to the parties’ arguments, the Court considers that the question
of whether there is a possession in the present case is inextricably linked to
the question of whether there has been an interference, a matter to be examined
in the context of the Court’s consideration of the merits of the case. The
Court further considers that the application raises complex issues of fact and
law which cannot be resolved at this stage in the examination of the
application (see, mutatis mutandis, Malik v. the United Kingdom,
no. 23780/08, § 100, 13 March 2012). It therefore joins the question to
the merits of the applicant’s property complaint under Article 1 of Protocol
No. 1.
2. Compatibility ratione
personae
(a) The
parties’ arguments
The Government referred to the case-law in Banković
and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 60, ECHR
2001-XII, arguing that when he moved to Serbia the applicant lost any
territorial link with Croatia and came under the jurisdiction of Serbia.
The applicant put forward no arguments in this
respect.
(b) The Court’s assessment
In view of all the circumstances of the present
case, and the material available before it, and the fact that the applicant
complains that his pension was not paid abroad by Croatian authorities although
such obligation existed under the national law and an international treaty, the
Court considers that the Government’s objection should be rejected.
3. Exhaustion of domestic remedies and compliance with
the six-month time-limit
(a) The parties’ arguments
The Government argued that the final domestic
courts’ decision in the applicant’s case had been the decision of the
Administrative Court of 8 March 2007, which had been served on the
applicant on 27 April 2007, and the applicant had lodged his application with
the Court more than six months later, namely in August 2010. The Government
considered that the applicant had failed to complain in his constitutional
complaint of 11 May 2007 about any violation of his human rights and had
only asked the Constitutional Court for a revision of the administrative proceedings.
Therefore, in their view, the six-month time-limit could not have started from
the service of the Constitutional Court’s decision on the applicant on 21 May
2010. Furthermore, the Government pointed out that the payment of the applicant’s
pension had been resumed on 20 January 2005 and that therefore the six-month
time-limit should be calculated from that date, which meant that the applicant
had lodged his application with the Court outside the six months.
The Government also stressed that during the
administrative proceedings, and in the proceedings before the Constitutional Court, the applicant had only contested the application of the relevant
domestic law and had never complained that his Convention rights had been violated.
In his constitutional complaint the applicant had only complained about the stopping
of the payment of his pension and asked that the decisions of the
administrative bodies be quashed and the payment of his pension resumed. The
Government also pointed out that the applicant had never complained that his
property rights had been violated or that he had been discriminated against in
that respect, and stated that he had failed to cite the relevant provisions of
the domestic law. Therefore, in their view, the applicant had failed to exhaust
the available and effective domestic remedies, and had consequently failed to
comply with the principle of subsidiarity.
The applicant considered that he had exhausted
all available domestic remedies and had complied with the six-month time-limit.
(b) The
Court’s assessment
The Court reiterates that the requirements
contained in Article 35 § 1 concerning the exhaustion of domestic remedies
and the six-month period are closely interrelated, since not only are they
combined in the same Article, but they are also expressed in a single sentence
whose grammatical construction implies such a correlation (see Hatjianastasiou
v. Greece, no. 12945/87, Commission decision of 4 April 1990, and
Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II (extracts)).
As a rule, the six-month period runs from the
date of the final decision in the process of exhaustion of domestic remedies.
Article 35 § 1 cannot be interpreted in a manner which would require an
applicant to inform the Court of his complaint before his position in
connection with the matter has been finally settled at the domestic level. In
this regard, the Court has already held that in order to comply with the
principle of subsidiarity, before bringing complaints against Croatia to the
Court applicants are in principle required to afford the Croatian
Constitutional Court the opportunity to remedy their situation (see Orlić
v. Croatia, no. 48833/07,
§ 46, 21 June 2011).
. The Court notes that in the course of the administrative proceedings
concerning the applicant’s pension, after the Dubrovnik office of the Croatian
Pension Fund had stopped paying his pension the applicant lodged an appeal with
the Appeal Council of the Executive Council of the Croatian Pension Fund,
arguing that there had been no legal ground for stopping his pension payments (see
paragraph 29 above). In his administrative action before the Administrative
Court against lack of action on the part of the lower administrative bodies
(see paragraphs 30 and 31 above) and in his administrative action against the
second-instance decision of the Croatian Pension Fund (see paragraph 37 above),
the applicant raised the same arguments, complaining about the arbitrary stopping
of the payment of his pension. Furthermore, the applicant reiterated the same
complaints in his constitutional complaint before the Constitutional Court,
pointing out that there had been no legal ground for stopping the payment of
his pension, and that the circumstances of the case showed that he had not had equal
treatment before the law (see paragraph 39 above). Thus, the applicant raised
before the national authorities the same complaints which are the essence of
his arguments before the Court.
. The final domestic courts’
decision was adopted on 11 March 2010 by the Constitutional Court and served on
the applicant on 21 May 2010, and the applicant lodged his application with the
Court on 24 August 2010, thus within the six-month time-limit. As regards the
Government’s argument that the six-month time-limit should be calculated from
20 January 2005, when the payment of the applicant’s pension was resumed, the
Court does not see the relevance of this date to the calculation of the
six-month time-limit, since the resumption of the applicant’s payments from 20
January 2005 has not compensated for the payments not made, nor has it any
other connection with the applicant’s complaints about the stopping of the
payment of his thirteen pension instalments prior to that date, in respect of which
the applicant complained.
Against the above background, the Court finds
that the Government’s objections must be rejected.
4. Abuse of the right of individual application
(a) The
parties’ arguments
The Government submitted that in the meantime the
applicant had moved to Serbia, where he has been living ever since. In February
2012 he requested that his pension be paid in Serbia, and the Croatian Pension
Fund granted that request. Accordingly, the applicant’s pension has been paid
by the Croatian Pension Fund to him in Serbia since March 2012. The Government
pointed out that the applicant had failed to inform the Court of this change,
and considered that this amounted to abuse of the right of individual
application.
The applicant made no arguments in this respect.
(b) The Court’s assessment
The Court reiterates that
if new, important developments occur during proceedings before the Court and if,
despite the express obligation on him or her under Rule 47 § 6 of the Rules of
the Court, an applicant fails to disclose that information to the Court,
thereby preventing it from ruling on the case in full knowledge of the facts,
his or her application may be rejected as an abuse of application (see Harbadová
and Others v. the Czech Republic (dec.), nos. 42165/02, 466/03, 25
September 2007; Predescu v. Romania, no. 21447/03, §§ 25-27, 2
December 2008; and Miroļubovs and Others
v. Latvia, no. 798/05, § 63, 15 September 2009).
The Court notes that the
applicant’s present complaints concern the period of what he states was an arbitrary
stopping of the payment of his pension between October 2003 and November 2004, and
that he had been discriminated against in that respect. Therefore, it remains
for the Court to examine whether in the said period the stopping of the payment
of the applicant’s pension was in fact arbitrary, and whether he has been
discriminated against. In respect of these complaints there has been no
relevant new development, and regard being had to the fact that the
information allegedly withheld only concerned new developments which had
occurred significantly later than the time when the applicant’s pension
payments were stopped, the Court does not find it established that the
applicant deliberately grounded his complaints on a version of events which
omitted any event of central importance (see, mutatis mutandis, Al-Nashif
v. Bulgaria, no. 50963/99, § 89, 20 June 2002; Adamović v.
Serbia, no. 41703/06, § 34, 2
October 2012). This is, moreover, so, because the applicant never tried
to negate or to provide false information in connection with the fact that he
was receiving his pension in Serbia from March 2012.
Therefore, the Court considers that the
Government’s objection must be rejected.
5. Conclusion
The Court notes that the applicant’s complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Alleged violation of Article 1 of Protocol No. 1
taken alone
(a) The
parties’ arguments
The applicant contended that the stopping of the
payment of the thirteen pension instalments in the period between 1 October
2003 and 1 November 2004 had been arbitrary, in that there had been no
legal ground to justify it. He explained that he was a YPA military pensioner,
who had retired under the former SFRY pension regime. However, after the
independence of Croatia he had applied for his pension to be recognised in Croatia and the competent domestic pension authorities, namely the Republic Workers’ Fund, on
12 December 1992 had recognised his right to receive pension payments from the
Croatian authorities. When applying for a pension in Croatia he had met all the
legal requirements, including that of being domiciled in Croatia. With the enactment of the 1998 Pension Insurance Act the military pensions of former YPA
military personnel had been incorporated into the general pension insurance
scheme in Croatia, and thus he had had the same status as any other pensioner
in Croatia.
In the meantime, in October 1998, he had visited
his son in Belgrade, Serbia, and had decided to stay there. His pension was
then paid to him through a representative in Croatia. In June 2003, after the
Social Insurance Treaty of 15 September 1997 had come into force, the applicant
applied for his pension to be paid in Serbia. In his view, the Social Insurance
Treaty had opened up a possibility for pensions from Croatia to be paid in
Serbia, and vice versa, and there had been no legal ground to treat his
military pension differently, since it had been incorporated into the general
pension scheme, and all the rules applicable to pensions should have been
directly applicable to military pensions. However, the Croatian pension
authorities had arbitrarily stopped the payment of his pension, arguing that
the Social Insurance Treaty did not apply to YPA military pensions. Therefore,
he had been forced to return to Croatia in October 2004, and the payment of his
pension had been resumed from 1 November 2004. Finally, the applicant
submitted that two other provisions of international law had been applicable to
his situation, namely Annexe E of the Agreement on Succession Issues and
Article 10 of ILO Convention 48.
The Government submitted that it had been
necessary to make a clear distinction between entitlement to a military pension
and entitlement to payment of military pensions to former YPA military
personnel. The applicant’s entitlement to a pension had been recognised by the
former SFRY authorities, and Croatia had only acknowledged that fact and
continued to pay the pension. The applicant had been entitled to receive the
pension abroad only under section 88 of the Pension Insurance Act. In other
words, the applicant would have received his pension as long as he lived in
Croatia or in one of the countries in respect of which it was possible to
receive payments from Croatia. Instead, the applicant had moved to Serbia, with which Croatia had not made any arrangement for payment of military pensions abroad, and
with which there was no reciprocal agreement, and Serbia had maintained a
separate pension system for military pensioners. Therefore, in the Government’s
view, the applicant had himself created a situation in which he had ceased to
satisfy the requirements of the domestic law to receive his pension, and
accordingly he had no possessions within the meaning of Article 1 of Protocol
No. 1. At the same time, all this should have been well known to the applicant,
since the Pension Insurance Act and the Pension Insurance Treaty had been
published in the Official Gazette and on the Internet and therefore accessible
to him. The fact that he had misinterpreted the relevant domestic law, which in
the Government’s view he himself was also aware of, had not changed the fact
that he and he alone was responsible for the cessation of payment of his
pension. The mere hope he had had that the pension would be paid in Serbia had no basis in the relevant domestic law. This is moreover so since he had failed
to make the necessary enquiries of the competent authorities as to whether there
was such a possibility.
The Government further argued that, if the Court
found that the applicant had had possessions within the meaning of Article 1 of
Protocol No. 1, the interference with his possessions had been lawful,
pursued a legitimate aim and was proportionate. Regarding the lawfulness of the
interference, the Government pointed out that Croatia had agreed to pay YPA
military pensions under certain conditions, which were even more flexible than
the conditions later set out in the Succession Agreement. Referring to the
case-law in Carson and Others (cited above) the Government argued
that the payment of pensions abroad had been possible only under a treaty or a
reciprocal agreement, which were legitimate requirements of the domestic law
within the State’s margin of appreciation. There had been no international
treaty or reciprocal agreement with Serbia on payment of YPA military pensions
abroad, and the applicant’s misinterpretation of the relevant law, notably the
Social Insurance Agreement, had had no bearing in this respect. Since at the
time Serbia was not paying pensions to YPA military pensioners living in Croatia, the Government saw no reason why Croatia should be paying such pensions in Serbia. In the Government’s view, the domestic authorities had sufficiently reasoned their decisions
when dismissing the applicant’s request, and it appeared from his submissions
to the Court that he had himself understood the whole situation. The Government
also pointed out that the applicant had dual citizenship, Croatian and Serbian,
and that it had been open to him to apply to the Serbian authorities for a
pension. He had, however, failed to do so, and had then later returned to
Croatia, following which the payment of his pension was resumed since the previously
existing impediments had been removed. The Government also submitted that Annexe
E of the Agreement on Succession Issues was not applicable to the applicant’s
situation at the time, since it had come into force only later. In any event,
under that Agreement the obligation to pay the applicant’s pension had been on Serbia. The Government also considered that ILO Convention 48 was not applicable to the
applicant’s case, since it concerned contributory pension systems, and the
applicant had not been a member of such a scheme in Croatia.
As regards the alleged interference being in the
public interest, the Government pointed out that the State had a wide margin of
appreciation in this respect, and that the public interest in limiting the
conditions for payment of YPA military pensions had been justified primarily by
the fact that Croatia, suffering from the effects of the war at the time, had
been paying pensions to thousands of such pensioners, although they had never
paid contributions in Croatia. The Government also argued, reiterating their
arguments that there was no treaty or reciprocal agreement with Serbia on the issue, that the applicant in this case had not borne an excessive individual burden, since
he was able to receive his pension through a representative in Croatia without the involvement of the pension system. They pointed out that the applicant
had never lost his entitlement to a pension, and that the payment of his
pension had been resumed once he had returned to Croatia. In any event, even
under the Succession Agreement, once the applicant had moved to Serbia, in view
of the fact that he also had Serbian citizenship, the applicant would have had
the right to receive a pension from Serbia and not Croatia.
(b) The Court’s assessment
(i) General principles
The Court reiterates that Article 1 of Protocol
No. 1 does not create a right to acquire property. It places no restriction on
the Contracting States’ freedom to decide whether or not to have in place any
form of social security or pension system, or to choose the type or amount of
benefits or pension to provide under any such scheme. However, where a Contracting
State has in force legislation providing for the payment as of right of a
welfare benefit or pension - whether conditional or not on the prior payment of
contributions - that legislation must be regarded as generating a proprietary
interest falling within the ambit of Article 1 of Protocol No.1 for persons
satisfying its requirements. Therefore, where the amount of a benefit or
pension is reduced or eliminated, this may constitute an interference with
possessions which requires to be justified in the general interest (see Stec
and Others v. the United Kingdom (dec.) [GC], no. 65731/01 and
65900/01, § 54, ECHR 2005-X; Kjartan Ásmundsson v. Iceland,
no. 60669/00, § 39, ECHR 2004-IX; and Valkov and Others v. Bulgaria,
nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04,
171/05 and 2041/05, § 84, 25 October 2011).
Where, however, the person concerned does not
satisfy, or ceases to satisfy, the legal conditions laid down in domestic law
for the grant of any particular form of benefits or pension, there is no
interference with the rights under Article 1 of Protocol No. 1 (see Rasmussen
v. Poland, no. 38886/05, § 76, 28
April 2009; and Richardson v. the United Kingdom (dec.), no.
26252/08, §§ 17-18, 10 April 2012). Finally, the Court observes that the
fact that a person has entered into and forms part of a State social security
system does not necessarily mean that that system cannot be changed either as
to the conditions of eligibility of payment or as to the quantum of the
benefit or pension (see, mutatis mutandis, Carson and Others [GC],
cited above, §§ 85-89).
(ii) Application of these principles to the present
case
The Court firstly observes that there is no
dispute between the parties that the payment of the applicant’s YPA military
pension, obtained under the relevant pension insurance legislation of the
former SFRY, has been accepted as an obligation of the Croatian pension
authorities, first by its transitional, and then by its general, pension
legislation. As suggested by the Government, the payment of the applicant’s
pension is subject to certain conditions, one of which was residence in Croatia or any other country with which Croatia had a reciprocal agreement or a treaty on payment of
pensions abroad. The question therefore arises whether the applicant satisfied
the necessary conditions for the payment of his pension. In view of the
principle that there is no right under Article 1
of Protocol No. 1 to receive
a social security benefit or pension payment of any kind or amount, unless
national law provides for such entitlement (see, for example, Raviv v. Austria,
no. 26266/05, § 61, 13 March 2012),
the central issue which remains for the Court to determine is whether the
applicant satisfied all the requirements under the relevant Croatian pension
legislation at the time, generating a property right to receive payment of his
pension in Serbia. Or, in other words, whether there was a sufficient legal
basis in the Croatian domestic legislation for the applicant to claim the
payment of his pension in Serbia (see Kopecký v. Slovakia [GC], no.
44912/98, § 54, ECHR 2004-IX).
A negative answer to this question will
consequently lead the Court to a finding that the stopping of the payment of
the applicant’s pension, as a result of conditions which he had created
himself, did not amount to an interference with his property rights under
Article 1 of Protocol No. 1 given that the applicant would not have a
proprietary interest falling within Article 1 of Protocol No. 1 (see Carson
and Others [GC], cited above, § 57).
However, by contrast, if the Court finds that
the applicant satisfied the requirements as set out by the relevant Croatian
pension legislation, then the stopping of the payment of the applicant’s
pension by the domestic authorities will be regarded as an interference with
the applicant’s property interests which was not in accordance with the law as
required under the Convention. Such a conclusion will make it unnecessary for
the Court to ascertain whether a fair balance has been struck between the
demands of the general interest of the community and the requirements of the
protection of the individual’s fundamental rights in finding a violation of
Article 1 of Protocol No.1 (see Iatridis v. Greece [GC], no. 31107/96, §
62, ECHR 1999-II).
The Court reiterates in the first place that a wide
margin is usually allowed to the State under the Convention as regards general
measures of economic or social strategy (see Stec and Others, cited
above, § 52) which means that the State has a wide margin of appreciation in
the enactment of this kind of statute and in the interpretation of such
statutes by the domestic courts (see, mutatis mutandis, Von Maltzan
and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and
10260/02, § 101, ECHR 2005-V). This does not, however, exclude the Court’s
power to review to what extent such legislation is specific and foreseeable
(see Caytas v. Turkey (dec.), nos. 25409/04, 19647/06, 22505/06,
22514/06, 31463/07, 62002/08 and 14842/09, 29 September
2009) and with what degree of clarity it allows the establishment of whether
the applicant’s situation falls within the provisions of the relevant law (compare
Von Maltzan and Others, cited above, § 98). Therefore, the Court
must satisfy itself that the legislation regulating the conditions for payment
of the pension is clear, precise and foreseeable with regard to the specific
legal requirements (see Croitoru v. Romania (dec.), no. 3205/03,
14 September 2010).
As regards the residence requirements, the Court
cannot in principle substitute its view for that of the domestic authorities as
to whether an individual complies with such requirements, so long as the
decisions of the domestic authorities do not disclose any arbitrariness, are
sufficiently reasoned, and, if appropriate, provide references to the relevant
domestic case-law and practice (see Jantner v. Slovakia, no.
39050/97, §§ 30-32, 4 March 2003, and Kopecký, cited above, §
56). Furthermore, the Court is not prevented from examining the manner in which
international agreements on social policy and pensions have affected an
individual’s situation at the domestic level (see Tarkoev and Others v.
Estonia, nos. 14480/08 and 47916/08,
§§ 61-65, 4 November 2010). In this respect the Court reiterates that it
is primarily for the national authorities, notably the courts, to interpret and
apply domestic law, even when that law refers to international law or
agreements. In each instance, however, the Court’s role is confined to
ascertaining whether the effects of such adjudication are compatible with the
Convention (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim
Şirketi v. Ireland [GC], no. 45036/98, § 143, ECHR 2005-VI).
The Court notes that following the dissolution
of the former SFRY, the military pensions of former YPA military personnel were
regulated in Croatia under transitional legislation, namely an Act
incorporating the former SFRY legislation on the matter into the Croatian legal
system (see paragraph 46 above). A further temporary measure aimed at assisting
the transition was a Republic of Croatia Government Decree, providing for
advance payments of pensions to persons who satisfied the relevant requirements,
one of which was residence in Croatia (see paragraph 47 above). In parallel
with the transitional legislation on YPA military pensions, civilian pensions related
to the former SFRY pension scheme were regulated by separate transitional legislation
(see paragraph 48 above). However, the same body, namely the Republic Workers’
Fund, was tasked with making the necessary arrangements in both cases.
Regarding the applicant’s
particular situation relevant to this period, the Court observes that on 7 July
1992 the Dubrovnik Office of the Republic Workers’ Fund recognised the
applicant’s right to advance payment of his YPA military pension, after it had
found that the applicant satisfied the necessary requirements, including
residence, in that he lived in Dubrovnik, Croatia. Furthermore, the same state
body, acting ex officio, on 12 December 1992 set the level of the
applicant’s pension and ordered that the pension be paid to the applicant as
long as he satisfied the necessary requirements (see paragraphs 22-24 above).
. The
Court further notes that the transitional legislation concerning YPA
military pensions was repealed by the 1993 Former Yugoslav People’s Army
Personnel Pension Act. Under that Act Croatia assumed responsibility for
payment of YPA military pensions to persons satisfying the necessary
requirements, one of which was residence in Croatia. The Republic Workers’ Fund
was tasked with enforcement of the Act (see paragraph 49 above).
However, in 1998, through legislative pension
reform in Croatia, the Yugoslav People’s Army Personnel Pension Act was repealed
by the enactment of the Pension Insurance Act, which finally incorporated YPA
military pensions into the Croatian general pension scheme. That conclusion, in
addition to the fact that separate legislation on YPA military pensions no
longer existed, also follows from the following. The Pension Insurance Act, in
section 186, recognised pensionable years of employment in the period prior to
8 October 1991 acquired under the former SFRY legislation on military
pensions as pensionable years of employment to be recognised when obtaining a
pension under the Pension Insurance Act. Furthermore, the Pension Insurance Act,
in section 152 § 1, provided that the means for payment of pensions to YPA
military pensioners should be secured in Croatia’s budget, and that the
necessary contributions should be paid on a monthly basis. The enforcement of
the Act was assigned to the Croatian Pension Fund, a body replacing the
Republic Workers’ Fund, which had ceased to exist. In the period relevant to
the present case, the Pension Insurance Act was amended several times. The
amendment of 29 November 2001 reduced the amount of YPA military pension
instalments. The Pension Insurance Act, including its amendments, never set out
any special requirements for the payment of pensions to former YPA military
personnel (see paragraphs 51-53 above).
The Court further notes that cooperation between
Croatia and Serbia on pension matters after the dissolution of the former SFRY
was initially regulated by the Social Insurance Treaty which came into force on
1 May 2003. This Treaty listed the legislation which it concerned,
including pension insurance legislation and all other legislation “integrating,
amending or supplementing” pension insurance legislation. In Article 3 it
expressly stated that it applied to “all persons to whom the relevant
legislation of one or both of the contracting States applies or has applied”. One
of the principles set out in this Treaty provided that pensions under the
relevant legislation of one of the contracting States could not be stopped or
otherwise adversely affected on the grounds of the beneficiary’s place of
residence. The competent domestic authority in Croatia under this Treaty was
the Croatian Pension Fund (see paragraph 54 above).
As to the applicant’s particular situation in
view of the above developments in the sphere of pension legislation, the Court
notes that in June 2003 the applicant informed the Croatian Pension Fund that
he had changed his place of residence to Belgrade, Serbia, and asked for his
pension to be paid there. However, the Croatian Pension Fund, acting upon the
applicant’s request, stopped payment of his pension on the grounds that the
Social Insurance Treaty did not cover YPA military pensions, and that there was
no reciprocal agreement with Serbia in that respect. Further remedies used by
the applicant before higher administrative bodies and the Administrative Court,
by which he argued that his YPA military pension had been incorporated into the
general pension scheme and that there had been no reason to stop his pension,
were dismissed with the same summary reasons.
The summary reasons
provided by the domestic authorities, without any specific reference to the
applicant’s complaints, relevant domestic courts’ case-law or any domestic authorities’ practice (see, by contrast, Jantner,
cited above, § 30), as well as the absence of an analysis
mandated by the complexity of the issues associated with the problems of
transitional arrangements for a federal military pension system after the
dissolution of the former SFRY and its integration into the pension systems of the former SFRY republics, cannot satisfy
the Court sufficiently to enable it to accept the Government’s argument that by
changing his place of residence to Serbia the applicant had lost his property
entitlement to receive the pension payments (see, by contrast, Jantner, cited above, § 33).
Specifically, as already indicated above, the
Court considers that the applicant’s YPA military pension was incorporated into
the Croatian pension scheme with the enactment of the Pension Insurance Act in
1998. That Act set aside the previous legislation on the matter which made
pension payments conditional, inter alia, on residence in Croatia and did
not set out any special requirements for YPA military pensioners as to their right
to receive pension payments.
However, even assuming that residence in
Croatia continued to be a requirement for the payment of the applicant’s
pension even after the enactment of the Pension Insurance Act, that requirement
appeared no longer relevant for those pensioners who moved to Serbia, once the
Social Insurance Treaty had been incorporated into the Croatian legal system.
In this respect the Court firstly notes that
under the Croatian Constitution international agreements have precedence in
terms of their legal effects over domestic statutes (see paragraph 44 above),
and that by ratifying the Vienna Convention on the Law of Treaties Croatia
undertook the obligation not to hinder its obligation to perform an
international treaty by citing provisions of its internal law. The Social
Insurance Treaty with Serbia did not expressly exclude its application to YPA
military pensions which had been recognised and incorporated in the general
pension legislation of the respective countries. Moreover, regarding its
applicability, it referred to “all persons” to whom pension legislation and
other legislation “integrating, amending or supplementing” primary pension
legislation applied, and indicated the Croatian Pension Fund as the competent
domestic authority in Croatia; the same body that was in charge of payment of
the applicant’s pension (see paragraph 54 above).
Therefore, in the absence of any reasons to the
contrary provided by the domestic pension authorities, the Court considers that
the applicant, whose YPA military pension had been incorporated into the
general pension scheme, had every reason to rely on the Social Insurance Treaty,
duly incorporated in the domestic system, providing that pension payments should
be continued, irrespective of his place of residence (see, mutatis mutandis,
Brezovec v. Croatia, no. 13488/07, § 68, 29 March 2011).
Accordingly, the change of the applicant’s place of residence to Serbia could
not foreseeably extinguish his entitlement to claim the payment of his pension,
as provided under the relevant domestic law.
The argument that at the time Serbia was not
paying pensions to YPA military pensioners in Croatia, as the respondent
Government suggested, was irrelevant in this respect, since Article 5 of the
Social Insurance Treaty guaranteed that the pensions could not be “reduced, stopped,
seized or confiscated on the ground of residence on the territory of one of the
contracting States” even without any further action by the domestic authorities
necessary to make this provision operative (see paragraph 54 above).
In view of the above findings, the Court considers that when stopping
payment of the applicant’s pension on the grounds that he had changed his place
of residence to Serbia, which was not sufficiently foreseeable as a consequence
in the relevant domestic law, the competent domestic pension authorities had
interfered with the applicant’s property interests in breach of the principle
of lawfulness and accordingly incompatible with the applicant’s right to
peaceful enjoyment of his possessions.
Such a situation persisted until 2 June 2004 when Annexe E of the Agreement
on Succession Issues between the former SFRY republics came into force. Annexe
E, which in particular dealt with pension matters, for pensioners with dual
citizenship such as the applicant (Croatian and Serbian) whose pensions had
been funded from the former SFRY federal budget, provided for the obligation
for payment of the pension on the State in which that person was domiciled (see
paragraph 55 above). Since at that time the applicant had domicile in Serbia
(see paragraphs 27 and 33 above) it follows that since 2 June 2004 Croatia had
no longer responsibility for the payment of his pension.
The Court therefore rejects the Government’s
preliminary objection it had previously joined to the merits (paragraph 62
above) and finds that there has been a violation of Article 1 of Protocol No. 1
as regards the stopping of the payment of the applicant’s pension in the period
between 1 October 2003 and 2 June 2004.
2. Alleged violation of Article 14 of the Convention
taken in conjunction with Article 1 of Protocol No. 1
(a) The
parties’ arguments
The applicant contended that the stopping of
the payment of his YPA military pension in the period between 1 October 2003
and 1 November 2004 had been done because of his Serbian ethnic origin and
the fact that he had changed his place of residence to Serbia.
The Government submitted, relying on the Court’s
case-law in Raviv v. Austria, no. 26266/05, 13 March 2012, that the applicant had
never paid any contributions to a pension fund in Croatia and therefore he was
not in the same position as other pension beneficiaries who had been paying
contributions in Croatia. Therefore, in the Government’s view, there had been
no issue under Article 14 of the Convention taken in conjunction with Article 1
of Protocol No.1. Furthermore, the Government pointed out that the domestic
legislation concerning the payment of pensions abroad did not distinguish
between pension beneficiaries on any ground, including their nationality,
ethnicity or the nature of the pension entitlement. All of them, including YPA
military pensioners, had had equal opportunities to obtain payment of their
pension abroad if there was a bilateral treaty or reciprocal agreement between
Croatia and their country of residence. The stopping of pension payments in a
country with which there was no treaty or reciprocal agreement had been a
consequence of an objective nature and not discrimination on any ground. In
this respect, Croatia had made no distinction between YPA military pensioners
and persons who had been paying contributions to pension funds in Croatia. Therefore, the fact that the applicant had not been receiving his pension in Serbia was a consequence of the fact that no reciprocal agreement or treaty on payment of YPA
military pensions existed between Croatia and Serbia at the time.
Furthermore, the Government argued that there
had been no discrimination on the ground of the applicant’s place of residence.
The Croatian authorities had never tried to influence the applicant’s choice of
a place of residence or to discriminate against him in that respect, but it was
simply objectively impossible for his YPA military pension to be paid in Serbia. He had made his choice of residence himself, and the fact that he had failed to make
proper enquiries as to the possibility of having his pension paid in Serbia could not be imputed to Croatia. The Government pointed out that the domestic pension
authorities had not kept records of the pension beneficiaries’ ethnicity, which
would have enabled them to discriminate against the applicant on that ground.
Moreover, neither the pension legislation nor any other Croatian legislation
had provided for ethnicity to be a relevant factor in obtaining or losing
certain rights. Therefore, the Government reiterated that the stopping of the
applicant’s pension payments had not been done as a result of a measure which
was aimed at any particular group.
(b) The Court’s assessment
The Court reiterates that it has held on many
occasions that Article 14 has no independent existence, but plays an
important role by complementing the other provisions of the Convention and the
Protocols, since it protects individuals placed in similar situations from any
discrimination in the enjoyment of the rights set forth in those other
provisions. Where a substantive Article of the Convention has been cited, both
on its own and together with Article 14, and a separate breach of the
substantive Article has been found, it is not generally necessary for the Court
also to consider the case under Article 14, though the position is otherwise if
a clear inequality of treatment in the enjoyment of the right in question is a
fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22
October 1981, § 67, Series A no. 45; Chassagnou and Others v. France
[GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; Herrmann
v. Germany [GC], no. 9300/07, § 104, 26 June 2012; and Vistiņš
and Perepjolkins v. Latvia [GC], no.
71243/01, § 135, 25 October 2012).
In the present case the Court notes that
neither the domestic legislation nor the decisions of the domestic authorities
in any way referred to the applicant’s ethnicity when stopping payment of his
pension. Moreover, the applicant did not dispute the Government’s assertion
that the domestic pension authorities had not recorded his ethnicity.
As regards the applicant’s complaint that the
payment of his military pension was stopped because he had moved to Serbia, the
Court is of the view that the complaint of inequality of
treatment in this respect has been sufficiently
taken into account in the above assessment that has led to the finding of a
violation of Article 1 of Protocol No. 1 taken separately. Accordingly, it
finds that there is no cause for a separate examination of the same facts from
the standpoint of Article 14 of the Convention (see, mutatis mutandis, Vistiņš
and Perepjolkins, cited above, § 136).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained, citing
Articles 3, 6 § 1, 13 and 17 of the Convention, that the stopping of his
pension amounted to degrading treatment, and that he had not had fair
proceedings or an effective domestic remedy concerning his pension rights.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that this part of the application does not
disclose any appearance of a violation of the Convention. It follows that it is
inadmissible under Article 35 § 3 as manifestly ill-founded and must be
rejected pursuant to Article35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
In his initial application the applicant claimed 7,280 euros (EUR) and the
related statutory default interests in respect of pecuniary damage and EUR
3,000 in respect of non-pecuniary damage. He did not claim any costs and
expenses.
The Government contested that claim.
The Court reiterates that a judgment in which it finds a breach imposes on
the respondent State a legal obligation to put an end to the breach and to make
reparation for its consequences. If the national law does not allow - or allows
only partial - reparation to be made, Article 41 empowers the Court to
afford the injured party such satisfaction as appears to it to be appropriate
(see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§
32-33, ECHR 2000-XI).
As regards the applicant’s claim for just satisfaction mentioned in the
application form, the Court notes that under Rule 60 of the Rules of Court an
applicant has to submit a just satisfaction claim within the time-limit fixed
for the submission of his or her observations on the merits. The applicant did
not claim any damage when invited to do so by the Court (see Trifković
v. Croatia, no. 36653/09, § 146, 6 November 2012). Thus, the Court is not
in a position to award him any amount in that respect.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits of the applicant’s property
complaint under Article 1 of Protocol No. 1 the Government’s objection
based on incompatibility ratione materiae and rejects it;
2. Declares the applicant’s complaints under
Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of
the Convention, admissible, and the remainder of the application inadmissible;
3. Holds that there has been a violation of
Article 1 of Protocol No. 1 taken alone;
4. Holds that there is no need to examine
separately the applicant’s complaint under Article 14 of the Convention taken
in conjunction with Article 1 of Protocol No. 1;
5. Holds that there is no call to award the
applicant just satisfaction.
Done in English, and notified in writing on 24 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sřren Nielsen Isabelle Berro-Lefčvre
Registrar President
