EHRM, 24-10-2013, nr. 52943/10

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).