CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 mai 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 39914/98                       by Ljuben TRICKOVIC                       against Slovenia        The European Commission of Human Rights (First Chamber) sitting in private on 27 May 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 11 November 1997 by Ljuben TRICKOVIC against Slovenia and registered on 17 February 1998 under file No. 39914/98;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Slovenian citizen, born in 1944 in what is now the Former Yugoslav Republic of Macedonia. He is represented before the Commission by the Human Rights organisation Helsinki Monitor of Slovenia. The facts of the application, as submitted by the applicant's representative, may be summarised as follows.        In the summer of 1991, at the time of the aggression on Slovenia, the applicant worked as a medical technician in the federal army hospital in Ljubljana. The federal army withdrew from Slovenia in October 1991 and the applicant, who had been declared 80% disabled, decided to retire and apply for an invalidity pension.        On 14 December 1991 the applicant was found to be entitled to retire on disablement grounds by the Military Social Security Authority in Belgrade, which paid his pension until April 1992.        Following the dissolution of former Yugoslavia and as the relevant bilateral treaties had not been concluded, the Government of the Republic of Slovenia issued a Decree on the Advance on Payment of Military Pensions (Official Gazette RS, no. 4/92 of 25.1.1992) by which it agreed to pay out monthly an advance on military pensions to Slovenian citizens who had applied to the federal authorities and fulfilled the conditions to obtain military pensions by 18 October 1991, the date of withdrawal of the federal army from Slovenia.        The applicant applied for an advance on payment of his military pension on 5 June 1992. The Pension and Invalidity Insurance Fund (Skupnost pokojninskega in invalidskega zavarovanja) found on 9 July 1992 that the applicant had no right to such an advance as he applied for and was found entitled to an invalidity pension only after 18 October 1991. His appeal was refused by the same body on 3 November 1992.        The applicant applied for judicial review. The Court of Associated Labour (Sodisce zdruzenega dela) rejected the application on 2 March 1993 on the same ground as the previous authority. The Higher Labour and Social Court (Visje delovno in socialno sodisce) in Ljubljana likewise rejected it on 7 July 1994 and confirmed the previous decision.        On 29 August 1994 the applicant lodged a constitutional complaint before the Constitutional Court alleging breaches of his constitutional rights to equality before the law, to social security and the protection of invalids. He claimed that these rights were violated by the Government decree of 25 January 1992 and confirmed by the decision of the courts, including the final decision of 7 July 1994 by the Higher Labour and Social Court.        The Constitutional Court stated that the constitutionality of the Government decree had already previously been established by it. It found that there was no dispute as to the applicant`s right to pension as such, but rather a question over his entitlement to an advance on payment of that pension. The entitlement to an advance derived from an "obligation" which the state had voluntarily accepted.   Advances were paid by the state (and not the Slovenian Pension Fund) to former military personnel who had obtained their right to a pension from the federal military authorities before the independence of Slovenia (26 June 1991) or before 18 October 1991, the date from which the federal army was no longer present in Slovenia. The Constitutional Court continued that neither the Government decree nor the relevant decisions in the applicant's case determined the applicant`s right to a pension.   Rather, the decree did no more than provide a temporary, partial solution to the problems arising from pensions which had been granted by the federal military authorities. The decree was limited to providing advances in cases where a person applied for or fulfilled the conditions for retirement before a certain date.   The Constitutional Court noted that a permanent solution would be found in the new law on military pension and invalidity rights which was still pending before the parliament. Until then, all the citizens could benefit from the social security scheme and, in particular, the applicant could avail himself of his rights under the Law on Social Security for Slovenian Citizens entitled to Pensions granted in the Republics of Former Yugoslavia(1992). The Constitutional Court rejected the applicant`s complaints as manifestly ill-founded on 17 April 1997. Its decision was served on the applicant on 17 May 1997.   COMPLAINTS        The applicant invokes Article 3 of the Convention claiming that the withdrawal of the pension which he had earned may be regarded as torture and degrading treatment; Article 5 of the Convention, alleging that withdrawal of pension means that he enjoys no security of the person; Article 14 of the Convention claiming that he is discriminated against on the ground of certain dates; Article 1 of Protocol No. 1 claiming   that as pension is not paid to him, his right to a peaceful enjoyment of possessions is violated; Article 6 of the Convention in that the Constitutional Court took almost three years to decide.   THE LAW   1.    The applicant complains under Article 6 (Art. 6) of the Convention about the length of proceedings before the Constitutional Court of Slovenia. The Commission considers that it cannot, on the basis of the applicant`s submissions, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to communicate this part of the application to the respondent Government.   2.     The applicant further complains under Articles 3 and 5 (Art. 3, 5) of the Convention, claiming that it is inhuman to deprive him of his pension and that he can not enjoy personal security.        However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of these provisions as, under Article 26 (Art. 26), it may only deal with the matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        The mere fact that the applicant submitted his case to the Constitutional Court does not in itself constitute compliance with this rule. According to the Commission`s constant case-law the applicant must have raised during the domestic proceedings concerned, at least in substance, the complaint he is arguing before the Commission (see No. 10307/83, Dec. 6.3.84, D.R. 37, pp. 113, 120; No. 15669/89, Dec. 28.6.93, D.R. 75, p. 39).        In this respect, and apart from the absence of any indication that the "minimum level of severity" at which Article 3 (Art. 3) applies has been attained, or that the applicant has been detained, the Commission notes that the applicant did not raise, either in form or in substance, in the proceedings before the Constitutional Court, the complaint he now makes before the Commission. There is no reference in the constitutional complaint to either Article 3 and 5 (Art. 3, 5) of the Convention or to their national equivalents, Articles 18 and 19 of the Constitution.        Moreover, an examination of the case as it has been submitted does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from raising his complaint in the proceedings referred to.        It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must therefore be rejected for non-exhaustion within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.   3.    The applicant further claims, under Article 1 of Protocol No. 1 (P1-1) of the Convention, taken alone and together with Article 14 (P1-1+14) of the Convention, that his right to peaceful enjoyment of possessions was violated.        Article 1 of Protocol No. 1 (P1-1), insofar as relevant, provides as follows:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of his      possessions except in the public interest and subject to the      conditions provided for by law and by the general principles of      international law. ..."        Article 14 (Art. 14) of the Convention provides as follows:        "The enjoyment of the rights and freedoms set forth in this      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."        The Commission first recalls that the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party.   The Convention entered into force with respect to Slovenia on 28 June 1994 which is also the date of its recognition of the right of individual petition. The applicant`s complaints of facts that occurred before that date are therefore outside the competence ratione temporis of the Commission.        Two decisions were taken in the applicant`s case after 28 June 1994, namely the decisions of the Higher Labour and Social Court in Ljubljana and of the Constitutional Court. The Higher Social and Labour Court confirmed the previous decision that the applicant had applied for and complied with the conditions for retirement out of time, and the Constitutional Court rejected the applicant`s complaints, finding no violation of the applicant`s rights to equality before the law or to social security and the protection of invalids. The Commission considers that, as these decisions dealt with the substance of the applicant's claim to an advance on his pension, it was only after 28 June 1994 that the applicant's rights were determined. Accordingly, the Commission cannot declare this part of the application inadmissible for   incompetence ratione temporis.        The Commission notes that the applicant's entitlement to a military disablement pension was established by the Military Social Security Authority in Belgrade on 14 December 1991.   The pension was paid by the Belgrade authorities until April 1992, when, it appears, payment ceased.   The present case does not, however, concern the applicant's entitlement to that pension, or its non-payment.   The present case concerns the refusal of the Slovenian authorities to grant the applicant an "advance" on that pension under a regime which, as the Constitutional Court pointed out, was a temporary "stop-gap" measure aimed at assisting those who had applied for and were entitled to a federal pension by 18 October 1991.   The date of 18 October 1991 had been chosen as that was the date on which the federal army withdrew from Slovenia.        The Commission also notes that the Constitutional Court commented that it remained open to the applicant to apply for social security benefits pursuant to the Law on Social Security for Slovenian Citizens entitled to Pensions granted in the Republics of Former Yugoslavia.        The Commission, recalling that the Convention does not guarantee a right to a specific social welfare benefit or its particular amount (Muller v. Austria, Comm. Report 1.10.75, D.R. 3, p. 25), notes that the applicant was entitled to apply for an advance on a military pension, but was only entitled to an advance if he complied with certain requirements. The Courts found, as is clearly the case, that the applicant did not comply with those requirements. In these circumstances the refusal of an "advance" on the applicant`s military pension does not disclose any interference with his right to peaceful enjoyment of his possessions, set out in Article 1 of Protocol No. 1 (P1-1) to the Convention.        In connection with Article 14 (Art. 14) of the Convention, the Commission notes that the date of 18 October 1991 was set as cut off point for entitlement to such an advance as it was the date on which the federal army finally withdrew from Slovenian territory.   Whilst entitlement to social security benefits may, in certain circumstance, give rise to issues under Article 14 (Art. 14) of the Convention (see, for example, Eur. Court HR, Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV), in the present case the legislature chose to grant a form of interim relief to those who had applied for a (federal) pension in the period when the federal army was still in Slovenia.   Such a limitation of social security benefits to a clearly defined category cannot be considered to lack an objective and reasonable justification within the meaning of the court's case-law on Article 14 (Art. 14) of the Convention.        It follows that this part of the application is manifestly ill- founded and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission        DECIDES TO ADJOURN the examination of the applicant's      complaint about the length of proceedings before the      Constitutional Court, and        unanimously,      DECLARES INADMISSIBLE the remainder of the application.     M.F. BUQUICCHIO                               M.P. PELLONPÄÄ      Secretary                                     President to the First Chamber                          of the First Chamber