CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 janvier 2007

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Bonello ,   Mr   K. Traja ,   Mr   L. Garlicki ,   Ms   L. Mijović ,   Mr   J. Šikuta ,   Mrs   P. Hirvelä, judges , and   Mr   T.L. Early, Section Registrar, Having regard to the above application lodged on 11 January 2001, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Petr Hampek, is a Slovakian national who was born in 1944 and lives in Banská Bystrica. Having been granted legal aid, the applicant is represented by Ms Z. Bejdová, a lawyer practising in Banská Bystrica. The respondent Government are represented by Mrs A. Poláčková, their Agent. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Pension scheme contributions and tax liabilities The applicant was employed and, as such, contributed to the State pension scheme ( dôchodkové zabezpečenie ). On 1 February 1999 he retired and started receiving a retirement pension. In July 1999 the applicant restarted working as a night watchman. As he was simultaneously receiving a retirement pension, he acquired the status of an “employed pensioner”. Being employed, he was liable to pay income tax on his salary. Being a   pensioner, he was not entitled to have a so-called “untaxable amount” deducted from his income tax base unlike other employed persons. On 1 January 2000 an amendment (Law no. 345/1999 Coll.) to the Social Security Administration Act (Law no. 274/1994 Coll. – “the SSA Act”) entered into force. It cancelled an exemption, which employed pensioners had enjoyed until then, from the obligation to pay contributions to the State pension scheme. The applicant thus became liable to contribute to this fund like any other employed person. On 1 August 2000 another amendment (Law no. 232/2000 Coll.) to the SSA Act entered into force which re-introduced the above exemption. Between 1 January and 1 August 2000 the applicant paid 2,138   Slovakian korunas [1] (SKK) in contributions to the pension scheme. The applicant unsuccessfully requested the President, the Prosecutor General, the National Council and the Constitutional Court to bring about a change in the relevant legislation. In a letter of 25   October 2000 the Prosecutor General informed the applicant that employed pensioners were not eligible for the deduction of the untaxable amount from their income tax base unless the total of their pension was less than the untaxable amount. If their pension was below the untaxable amount, an amount equal to the difference between the actual pension and the untaxable amount would be deducted from the tax base on their salary. The letter further explained that the purpose of the pension scheme was to provide income for persons who were unable to provide for themselves by working, for example on account of their retirement age. As the State allowed retired persons to obtain income from employment in addition to their retirement pension, it was justified to impose certain restrictions on them, for example by taxing their salaries. As for the applicant’s complaint that he was liable to contribute to the pension fund, he was informed that as from 1 August 2000 the rules had changed (see above). 2.     Civil action On 13 November 2000 the applicant brought an action against the State in the form of the Ministry of Labour and Social and Family Affairs in the Banská Bystrica District Court ( Okresný súd ). He sought repayment of the contributions which he had paid to the pension scheme between January and July 2000 (see above). On 22 November 2000 the Banská Bystrica District Court forwarded the action to the Bratislava I District Court on the ground that it fell within the territorial jurisdiction of the latter court. On 13 December 2000 the Bratislava I District Court submitted the question of jurisdiction to the Supreme Court ( Najvyšší súd ), which ruled on 26   April 2001 that the action should be determined at first instance by the Bratislava I District Court. However, the case file was only forwarded to that court on 25 June 2001. On 18 June 2001 the District Court requested the defendant to submit observations in reply, which the Ministry did on 25 July 2001. The District Court scheduled a hearing for 29 November 2001. The applicant stated that he would not be able to appear. He submitted his arguments in writing and requested the court to hear the case in his absence. On 29 November 2001 the District Court held a hearing following which, on the same day, it dismissed the action. Having heard the defendant’s representative and having examined complex documentary evidence, the court found that the amount claimed had been withheld from the applicant’s salary under the relevant provisions of the SSA Act. The Ministry had not breached any legal obligation and thus could not be held responsible for any loss incurred by the applicant. The judgment of 29 November 2001 was served on the applicant on 20   June 2002. On 2 July 2002 he appealed arguing that the bill for the amendment no. 345/1999 Coll. had been drafted by the Ministry and that, therefore, it was the Ministry which was liable for the damage caused to him by implementing that amendment. On 25 July 2002 the District Court requested the defendant to submit observations in reply to the appeal, which the Ministry did on 13   August   2002. The Bratislava Regional Court ( Krajský súd ) listed a hearing of the appeal for 8 May 2003. The applicant stated that he would not be able to   appear. He requested the court to hear the case in his absence and submitted his arguments in writing. On 14 May 2003 the Regional Court upheld the first-instance judgment. It observed that before a bill became law it was subject to a complex legislative process. Drafting and submitting a bill as such could not engage liability for damage. There was no indication that the Ministry had breached any legal duty in connection with the process of amending the SSA Act. The appellate court’s judgment was served on the applicant on 27   August   2003. 3.     Constitutional proceedings On 6 May 2002 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court ( Ústavný súd ). He directed the complaint against the Bratislava I District Court and argued, in substance, that the length of the proceedings had been excessive. He claimed SKK   100,000 [2] by way of just satisfaction. On 7 October 2002, on his request, the Constitutional Court appointed an ex officio lawyer to the applicant and, at the same time, declared the complaint admissible. In 26 March 2003 the applicant requested his lawyer for a report on the progress of the proceedings. In a letter of 31 March 2003 the lawyer informed the applicant that at the Constitutional Court’s request he had provided further and better particulars of the complaint and had agreed to the Constitutional Court deciding on the case without holding an oral hearing. In a letter of 18 August 2003 the applicant informed the lawyer that, by accepting that there would be no public hearing before the Constitutional Court, the lawyer had acted contrary to the applicant’s right to   be heard in court. On 28 August 2003 the applicant made a written submission to the Constitutional Court in which he sought to include in his constitutional complaint the undue delays in the proceedings before the Regional Court. On 10 September 2003 the Constitutional Court found that the Bratislava   I District Court had violated the applicant’s right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution) and “within a   reasonable time” (Article 6 § 1 of the Convention). It awarded the applicant SKK 5,000 [3] by way of just satisfaction in respect of his non ‑ pecuniary damage and ordered the reimbursement of his legal costs. The Constitutional Court found that the overall length of the proceedings had been 2 years and 8 months. During that period, the case had been pending before the Supreme Court for 6 months and before the Bratislava Regional Court for 11 months. However, the subject-matter of the constitutional proceedings had been determined by the admissibility decision of 7 October 2002 which, as the applicant’s original complaint, concerned the proceedings before the District Court alone. Therefore, in the framework of the present constitutional proceedings, it was not possible to examine the proceedings before the Regional Court which the applicant had contested after the admissibility decision. As regards the proceedings before the Bratislava I District Court, the Constitutional Court found that an unjustified delay had occurred between 29 November 2001 and 13 June 2002 (i.e. approximately 6 months). B.     Relevant domestic and international law 1.     The Constitution (Constitutional Law no. 460/1992 Coll., as amended) All human beings are equal in dignity and rights (Article 12 § 1) regardless of sex, race, colour, language, faith, religion, political affiliation or conviction, national or social origin, nationality or ethnic origin, property, birth or any other status (Article 12 § 2). Every person has the right to have his or her case tried without unjustified delay (Article 48 § 2). 2.     Income Tax Act of 1999 (Law no. 366/1999 Coll., as amended) Income from employment is subject to personal income tax (section 3 (1) (a) in conjunction with section 6 (1)). The personal income tax base is in general calculated as the difference between the income and the expense incurred in order to achieve it (section   5 (1)). The tax base does not comprise income exempted from tax (section 5 (5)) such as, for example, a retirement pension (section 4 (1)). Section 12 defines untaxable amounts which are to be deducted from the tax base. These include inter alia SKK 38,760 [4] per year in respect of the taxpayer himself (subsection 2 (a)). This amount cannot be deducted if the taxpayer was receiving a retirement pension at the beginning of the taxation period unless the total of the pension is less than the above untaxable amount. In the latter case the taxpayer can deduct the difference between the untaxable amount and the pension received (subsection 4). 3.     Social Security Administration Act of 1994 (Law no. 274/1994 Coll., as amended) Employed persons ( zamestnanci ) and their employers are liable to pay contributions to the pension scheme (section 14 (1) (a) and (d)). Employed persons, who were receiving a retirement pension, were exempted from such liability (section 14 (7) (e)) until 1 January 2000. As from 1 January 2000 the exemption under section 14 (7) (e) was repealed by amendment no. 345/1999 Coll. and then reintroduced by amendment no. 232/2000 Coll. as from 1 August 2000. The amendment no. 232/2000 Coll. had been drafted by an individual member of the parliament. In the explanatory report ( dôvodová správa ) on the bill the deputy considered that the repeal of the exemption under section 14 (7) (e) had been contra bonos mores in that employed pensioners had been made to contribute to the pension scheme but had received nothing in return. The Ministry of Labour and Social and Family Affairs submitted the bill to the Cabinet with an introductory report ( predkladacia správa ) in which they disagreed with the drafter. According to this report the exemption in question had given an unjustified advantage to employed pensioners over other employed persons in that as no contributions had been associated with the employment of pensioners, the latter group had been a more attractive work force than other employees. This had distorted the labour market and had to be corrected by the amendment no. 345/1999 Coll. Another reason for that amendment had been the recent passive balance of the retirement pension fund. The situation of persons who are employed after becoming entitled to a retirement pension but do not draw such a pension is addressed in section 23. The amount of the pension to which they are entitled increases with the length of their employment after retirement age according to a formula defined in sub-section 1. If a person entitled to a retirement pension takes up employment, the retirement pension is suspended (section 98 (1)), unless the employment is for a term shorter than 1 year (section 98 (2)). On 1 January 2001 another amendment (Law no. 467/2000 Coll.) to the SSA Act entered into force. It again repealed the exemption under section 14 (7) (e) and provided that employed persons participate in the pension scheme and are liable to pay contributions to the pension fund (subsection   2). As from 1 January 2004 the SSA Act lost legal effect and the social security regulation was completely re-codified. 4.     The International Labour Organisation’s Social Security (Minimum Standards) Convention, 1952 (No. 102) Article 26 § 3 provides that national laws may provide that the benefit of a person otherwise entitled to it may be suspended if such a person is engaged in any prescribed gainful activity or that the benefit, if contributory, may be reduced where the earnings of the beneficiary exceed a prescribed amount and, if non-contributory, may be reduced where the earnings of the beneficiary or his other means or the two taken together exceed a prescribed amount. COMPLAINTS 1.     The applicant complained under Article 6 § 1 of the Convention (i) that the proceedings in his action of 13 November 2000 had been unfair in that the action had been arbitrarily dismissed, (ii) that their length had been excessive; and (iii) that the Constitutional Court had decided on his complaint without having heard him. 2.     Relying on Article 14 of the Convention the applicant also complained that, having been an employed pensioner, he had been discriminated against (i) in relation to other pensioners in that unlike them he had been liable to   contribute to the retirement pension scheme despite being of retirement age; and (ii) in relation to other employed persons in that, unlike them, he had been unable to deduct the untaxable amount from his tax base. 3.     The applicant finally alleged a violation of Article 13 of the Convention in that he had had no effective remedy at his disposal in respect of his alleged discrimination. THE LAW 1.     The applicant complained of the unfairness and length of the proceedings in his action and the lack of an oral hearing on his constitutional complaint. He relied on Article 6 § 1 of the Convention which, in so far as relevant, provides that: “In the determination of his civil rights and obligations, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...” (a)   In so far as the applicant complained that the proceedings in his action of 13 November 2000 had been unfair, the Court observes that the action had been examined by courts at two levels of jurisdiction. They examined the relevant laws and their implementation in the applicant’s case, as well as complex evidence. The proceedings were adversarial in nature and the applicant was provided with ample opportunity to state his arguments, to challenge the submissions made by his opponent and to   submit whatever he found relevant for the outcome. The applicant was summoned to two hearings which he did not attend, but requested that the case be dealt with in his absence on the basis of his written submissions. The courts came to the same conclusion that the amounts in dispute had been withheld from the applicant’s salary in accordance with the relevant laws and that there was no indication that the defendant had breached any legal obligation. This conclusion and its reasoning do not appear manifestly arbitrary or wrong. In so far as the complaint has been substantiated, there is no indication of any procedural unfairness within the meaning of Article 6 § 1 of the Convention (see, for example, García Ruiz v. Spain [GC], no. 30544/96, §   28, ECHR 1999-I). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. (b)   As regards the applicant’s complaint of the length of the proceedings before the District Court, the Government objected that in view of the Constitutional Court’s judgment of 10 September 2003 the applicant could no longer claim to be a   “victim” in the Convention sense. The Government further submitted that the applicant had failed to   exhaust domestic remedies in that he had not included the proceedings before the Regional Court and the Supreme Court in his constitutional complaint. Irrespective of that, the Government considered that this part of the application was manifestly ill-founded. The applicant disagreed and reiterated his complaint. The Court considers that it is not called upon to rule separately on the question of the applicant’s victim status and the exhaustion of domestic remedies as, in any event, this part of the application is inadmissible for the following reason. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). In the present case the “determination” of the applicant’s “civil rights and obligations” began on 13 November 2000 when he lodged his action and ended on 14 May 2003 when the Regional Court ruled on his appeal. For the purposes of Article 6 § 1 of the Convention the proceedings lasted about 2 years and 6 months. During this time the merits of the action were examined at two levels of jurisdiction. Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that there is no indication in the instant case that the length of the proceedings was unreasonable, despite the fact that certain delays in them had been acknowledged by the domestic authorities (see D.K. v. Slovakia (dec.), no. 41262/98, 14 May 2002). In reaching this conclusion the Court has taken into account not only the proceedings before the District Court, as the Constitutional Court did, but the proceedings in their entirety before all the courts involved. It follows that this complaint is manifestly ill-founded and must be   rejected in accordance with Article   35 §§   3 and   4 of the Convention. (c)     As to the applicant’s Article 6 complaint in respect of the proceedings before the Constitutional Court, it is to be noted that the subject-matter of those proceedings only concerned the length of the proceedings before the ordinary courts. The outcome of the constitutional proceedings was therefore not directly decisive for the applicant’s “civil rights and obligations” (see Süßmann v. Germany , Reports of Judgments and Decisions 1996-IV, p. 1171, § 41, and Mikolaj and Mikolajová v. Slovakia , no. 68561/01, § 36, 29   November   2005). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 and must be rejected in accordance with Article 35   §   4. 2.     The applicant complained of discrimination and invoked Article 14 of the Convention. The Court considers that the complaint must be examined under that provision in conjunction with Article 1 of Protocol No. 1. Article 14 of the Convention provides that: “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 provides that: “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.” The Government accepted that Article 14 of the Convention applied in the present case in conjunction with Article 1 of Protocol No. 1. They submitted that the Slovakian pension system was based on the principle of general solidarity and continuous financing. Pensions during a   certain period were paid from contributions collected during that same period. The main function of the pension scheme was to provide income for persons who were unable to provide for themselves by working, for example on account of their retirement age. Persons receiving a retirement pension were normally not expected to be employed because they were provided for otherwise. This approach was in accordance with international standards. The duty to contribute to the pension scheme was an inevitable prerequisite for the functioning of the social system, and how that system was to be devised fell within the Contracting Parties’ margin of appreciation. As for the untaxable amount, the Government submitted that the object, purpose and effect of the contested legislation was to place employed pensioners, whose pension was exempted from income tax, in the same situation as other employed persons, who could deduct the untaxable amount from their tax base. Were the applicant to benefit from both the pension and the untaxable amount, he would in fact benefit twice from the system, which would be unfair. Similarly, in respect of the obligation to contribute to the pension scheme, the Government submitted that its aim was to maintain a fair balance between, on the one hand, employed pensioners who received both a pension and a salary and, on the other hand, other people who received either a pension or a salary. By way of comparison, if a person had two jobs at the same time, he or she would be liable to pay contributions to the pension scheme in the context of both jobs. Were the applicant and other employed pensioners to be exempted from the obligation to contribute to the pension scheme, they would have an   unjust advantage vis-à-vis other employed persons in that they would in general constitute a cheaper workforce. This had previously given rise to an untenable situation in the labour market. Moreover, the arrangement had been necessary in view of the unfavourable balance of the retirement pension fund. In any event, employed pensioners had other means to   avoid their liability to contribute to the pension fund such as, for example, being employed on an employment contract ( pracovná zmluva ) for a term longer than one year or on other types of contracts. The Government concluded that the relevant part of the application was manifestly ill-founded. The applicant disagreed and reiterated his complaints. He submitted in particular that the structure of the pension system reflected the inept management of public funds and had placed a discriminatory and inequitable burden on him. The Court recalls that, according to its established case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among many other authorities, Gaygusuz v. Austria , no. 17371/90, § 36, ECHR 1996-IV). The right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an   objective and reasonable justification or when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see, among many other authorities, Thlimennos v. Greece [GC], no. 25735/94, §   44, ECHR 2000-IV). In the present case, the applicant alleges discrimination on account of two specific features of the taxation and pension system. Regarding the first feature, the applicant contended that he had been treated differently from retired persons who had not been working in that, unlike them, he still had to contribute to the retirement pension fund. However, as the applicant himself was employed, it cannot be said that he was in an analogous situation for the purposes of Article 14 of the Convention. As to the second feature, the applicant complained that he had been treated differently from employed persons who had not been receiving a retirement pension in that, unlike them, he had not been eligible for a deduction of the untaxable amount from his tax base. However, since the applicant himself was receiving a retirement pension, it cannot be said that he was in an analogous situation for the purposes of Article   14 of the Convention (see, mutatis mutandis , Frátrik v. Slovakia (dec.), no. 51224/99, 25 May 2004). In so far as the applicant was treated in the same way as other employed persons in that, like them, he had to pay contributions to the pensions scheme, and in so far as he can be said to have been in different situation in that, unlike them, he had already become entitled to retirement pension, the following must be noted. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article. A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject-matter and the background. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy (for a summary of the relevant principles see Stec and Others v. the United Kingdom [GC], no. 65731/01, §§   51-53, ECHR 2006 ‑ ...). The public pension system is based on the principle of social solidarity between those who provide for themselves and those who cannot do so for various justified reasons. Such a system is a complex mechanism the regulation of which depends on a variety of considerations including political, economic, social and ethical. It is based on the general premise that employed persons contribute to the pension scheme and retired persons benefit from a pension. Normally, pensioners do not work and do not contribute to the scheme. If they restart working, their pension entitlement is suspended. This arrangement appears to be well in accordance with the applicable international regulation. The applicant however ended up in a   situation where he both worked and continued receiving a pension. This placed him and those in similar circumstances in an advantaged position in the labour market in relation to other employees. As the Government submitted, the labour market was affected by the irregular situation of employed pensioners and called for regularisation. It should further be noted that the negative effect of the applicant’s obligation to contribute to the pension scheme even after he had become entitled to a retirement pension was accompanied by the positive effect that he continued to receive the pension despite being employed and drawing a   salary. In the light of the above the Court finds that in the specific circumstances of the present case the justification by legitimate social solidarity considerations, as identified by the domestic authorities, of the applicant’s obligation to   contribute to the retirement pension fund is objective and reasonable for the purposes of Article 14 of the Convention. The Court accordingly finds that the facts of the case do not disclose any appearance of a violation of the applicant’s rights protected under Article 14 of the Convention taken together with Article 1 of Protocol No. 1. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 3.     Lastly, the applicant complained of the lack of an effective remedy in respect of his discrimination, contrary to Article 13 of the Convention, which reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the   United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52). The applicant’s complaints under Article 14 of the Convention are manifestly ill-founded. For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to them. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   T.L. Early   Nicolas Bratza   Registrar   President   [1] SKK 2,138 is equivalent to approximately 50 euros (EUR). [2] SKK 100,000 is equivalent to approximately EUR 2,650. [3] SKK 5,000 is equivalent to approximately EUR 130. [4] SKK 38,760 is equivalent to approximately EUR 1,000.