ALEKSIC v. SLOVENIA - 57123/10 (Judgment : Article 14+P1-1-1 - Prohibition of discrimination : Fourth Section Committee) [2019] ECHR 154 (19 February 2019)

JUDGMENT STRASBOURG 19 February 2019 This judgment is final but it may be subject to editorial revision. In the case of Aleksić v. Slovenia, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of: Georges Ravarani, President, Marko Bošnjak, Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 29 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 57123/10 ) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Slovenian national, Mr Milosav Aleksić ("the applicant"), on 1 October 2010. 2. The applicant was represented by Mr M. Krivic, who was granted leave to represent the applicant under Rule 36 § 4 (a) of the Rules of Court. The Slovenian Government ("the Government") were represented by their Agent, Ms J. Morela, State Attorney. 3. On 9 June 2016 notice of the complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, concerning a refusal to grant the applicant an old-age pension between May 1992 and February 2003 because he had not had Slovenian citizenship at that time, was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3. 4. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1944 and lives in Ljubljana. . For the relevant background to the case, see Ribać v. Slovenia (no. 57101/10 , §§ 6-11, 5 December 2017). . The applicant was a citizen of the Republic of Serbia in the Socialist Federal Republic of Yugoslavia ("the SFRY"). Following the dissolution of the SFRY, he retained citizenship of the then Federal Republic of Yugoslavia. He has had permanent resident status in Slovenia since 1977, where he also married and had two children. He was a member of the Yugoslav People's Army (hereinafter "the YPA"). 8. On 23 September 1991 he applied to the Vrhnika Military Post Office for early retirement as of 30 April 1992, and was then "available" ( na razpolago ) and on leave until his retirement. On 29 November 1991 the Office granted his request. 9. On 25 October 1991 he left Slovenia with the YPA and went to Kraljevo. The applicant maintained that he had left with the YPA so he could fulfil the retirement conditions. On 21 December 1991 he returned to Slovenia, but left again in January 1992, which he maintained was for the purpose of arranging documents for his retirement. On 27 April 1992 the applicant returned to Slovenia, holding that it had not been possible for him to return earlier because of the war. . On 16 July 1992 the military pension fund for the armed forces of the SFRY (hereinafter "the YPA Fund") found the applicant to be entitled to an early retirement pension under SFRY military rules as from 1 May 1992. The applicant maintained that he had never received any pension from the YPA Fund. 11. On 27 December 1991 the applicant applied for Slovenian citizenship under section 40 of the Citizenship Act (see paragraph 22 below). By a decision of 7 July 1992 the Ministry of the Interior refused his application, holding that the applicant had not lived in Slovenia between 25 October 1991 and 27 April 1992. The Supreme Court dismissed his subsequent appeal. . On 29 July 1992 the applicant applied for an advance payment of his military pension under the Advance Payment of Military Pensions Ordinance (hereinafter "the Ordinance"; see paragraph 22 below). By a decision of 18 February 1993 the Pension and Disability Insurance Institute of Slovenia (hereinafter "the Institute") refused the applicant's application, finding that he had not fulfilled the conditions for pension entitlement under SFRY military rules, namely the age requirement, by 18 October 1991 (section 2(1)(2) of the Ordinance). The Institute also noted that the Ministry of Defence had opined that there had been no indication of the applicant having participated in aggression against Slovenia (section 2(2) of the Ordinance; see paragraph 22 below). His subsequent appeal was dismissed and the applicant initiated court proceedings. . On 4 February 1994 the Court of Associated Labour of the Republic of Slovenia dismissed his claim, holding that the applicant had not fulfilled the conditions under section 2(1)(2) of the Ordinance (see paragraph 22 below) because he had not reached the required retirement age by 18 October 1991. The court emphasised that there had been nothing to suggest that the applicant had participated in aggression against Slovenia as a member of the YPA (section 2(2) of the Ordinance). An appeal, an appeal on points of law and a constitutional complaint all lodged by the applicant were dismissed. . On 4 November 1998 the applicant applied for an old-age pension under the Act on the Rights Stemming from the Pension and Disability Insurance of Former Military Personnel (hereinafter "the 1998 Act", see paragraph 22 below). On 25 February 1999 the Institute refused his application, holding that he had not continuously had permanent resident status in Slovenia between 25 June 1991 and October 1998 (section 2(1)(2) of the 1998 Act). The applicant appealed. . On 12 August 1999 the Institute dismissed the appeal, holding that the applicant had not fulfilled the statutory requirements under the 1998 Act because he had not continuously had permanent resident status in Slovenia for the relevant period and had failed to claim his pension rights by 25 June 1991 (section 2(1)(2) of the 1998 Act). . On 10 January 2003 the Ljubljana Labour and Social Court dismissed an application for judicial review lodged by the applicant. It pointed out that the applicant had fulfilled the permanent resident status requirement, but had nevertheless not claimed his pension rights by 25 June 1991. . Meanwhile, in October 1999 the applicant reapplied for Slovenian citizenship. On 15 May 2002 the Ministry of Interior issued an assurance to the applicant that he would be granted citizenship if he could prove that he had been released from his current citizenship. On 2 December 2002 the applicant asked the Ministry to grant him citizenship on the basis of the amended Citizenship Act without prior release from his current citizenship. On 4 February 2003 the applicant acquired citizenship by naturalisation under section 19 of the amended Citizenship Act (see paragraph 22 below). . On 19 May 2003, after lodging a new request with the Institute, the applicant was granted an old-age pension as from 4 February 2003 under the Pension and Disability Insurance Act (hereinafter "the general rules"). . The applicant appealed, arguing that he should have been granted the pension as from 1 May 1992. On 3 November 2003 the Institute dismissed his appeal, holding that the applicant had been entitled to an old-age pension under the general rules and section 2(4) of the 1998 Act as from 4 February 2003 - when he had acquired Slovenian citizenship. An application that he lodged for judicial review and a subsequent appeal were also dismissed by the Ljubljana Labour and Social Court and the Higher Labour and Social Court respectively, reiterating the Institute's arguments. . On 23 March 2009 the Supreme Court dismissed an appeal on points of law lodged by the applicant. The court reiterated that under new section 15 of the 1998 Act (see paragraph 23 below), the applicant would be entitled to a pension retroactively only if he had acquired citizenship under section 40 of the Citizenship Act. 21. On 30 March 2010 the Constitutional Court refused to accept for consideration a constitutional complaint lodged by the applicant, finding that it did not concern an important constitutional issue or entail a violation of human rights which had serious consequences for him. II. RELEVANT DOMESTIC AND INTERNATIONAL LAW . A detailed account of the domestic law provisions is contained in Ribać (cited above, §§ 25-29). . In November 2006, the 1998 Act was amended (Official Gazette no. 118/2006). The relevant part of the amended section 15 reads as follows: Section 15 Commencement of payment of the benefits under this Act "An old-age pension, [or] an early retirement pension ... under this Act shall be paid from the first day of the month following the submission of the request and retroactively for a maximum period of six months, provided that no such retroactive payment shall be made for a period pre-dating the date of entry into force of this Act. Irrespective of the preceding paragraph, beneficiaries who have acquired citizenship under section 40 of the Citizenship of the Republic of Slovenia Act (Official Gazette nos. 1/91 -I, 30/91 -I, 38/92 , 13/94 and 96/02 ) shall, on application, be granted and paid an old-age pension, [or] an early retirement pension ... for which they fulfil the requirements under section 2(4) of this Act from the date on which they first fulfilled those requirements ... though not pre-dating 18 October 1991 ..." . A description of the relevant provisions of the Agreement on Succession Issues can be found in Ribać (cited above, § 30). THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 25. The applicant complained that he had been denied an old-age pension between May 1992 and February 2003 on the grounds that he had not had Slovenian citizenship, one of the requirements under the 1998 Act. He relied on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. These provisions read as follows: Article 14 "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 personae and ratione materiae 26. The Government argued that the applicant could not claim to have victim status since he had had Serbian citizenship at the relevant time and could thus have requested payment of his military pension from the YPA Fund and consequently from his own State but had failed to do so. They further argued that the applicant did not have any "possessions" within the meaning of Article 1 of Protocol No. 1 as the rights granted by Slovenia to the YPA military personnel in question had been provided "voluntarily" and in this regard the applicant had had no legitimate claim. 27. The applicant disputed these arguments. 28. The Court notes that similar objections have already been considered in Ribać v. Slovenia (no. 57101/10 , § 34 and 38-45, 5 December 2017). Referring to the reasons set out therein, the Court dismisses the Government's objections and finds the application compatible with the provisions of the Convention, both ratione personae and ratione materiae . 2. Other grounds for inadmissibility 29. The Court notes that application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties' arguments 30. The applicant argued that the respondent State had discriminated against him by refusing to grant him an old-age pension between 1 May 1992 and 4 February 2003 on the grounds of nationality criteria enshrined in the 1998 Act. . The Government argued that Slovenian citizens had not been in the same situation as foreigners with permanent residence in Slovenia who could have expected their own State to assume responsibility for their social security. . In the alternative, the Government argued that, even assuming that there had been a difference in treatment, it had served the legitimate aim of safeguarding the State by ensuring social security for its citizens and protecting the economic system. . The Government further contended that the applicant had remained in active military service in the YPA, which was considered an aggressor army, after Slovenia declared its independence and that he had left Slovenia with the YPA, whereas he could have joined the Territorial Defence of Slovenia and secured his social welfare entitlements in that way. In addition, had the applicant applied for termination of his Serbian citizenship, he could have been granted Slovenian citizenship on the basis of his application for citizenship in 1999 (see paragraph 17 above). . Lastly, the Government also submitted that the applicant's old-age pension was a succession issue following the dissolution of the SFRY. 2. The Court's assessment 35. The relevant principles have been summarised in Ribać (cited above, §§ 51-54). . The Court notes that in the case of Ribać (cited above, §§ 56-60) it has rejected arguments similar to those put forward by the Government in the present case (see paragraph 31 above) and concluded that the applicant's situation with regard to retirement benefits was similar to that of retired YPA military personnel with Slovenian citizenship. 37. With respect to the retroactive application of the 1998 Act (section 15(2); see paragraph 23 above) and the differences between the retired YPA military personnel who acquired citizenship on the basis of section 40 of the Citizenship Act and those, like the applicant, who acquired it by naturalisation, the Court observes that the Government advanced no arguments regarding the differences between the two groups of beneficiaries. Having regard to the preceding paragraph, the Court cannot but conclude that during the period at issue the applicant's situation with regard to retirement benefits was similar to that of retired YPA military personnel with Slovenian citizenship acquired under section 40 of the Citizenship Act. The Court must accordingly determine whether the difference in treatment, which was initially based on the applicant's nationality, and subsequently on the grounds on which the applicant acquired Slovenian citizenship, was justified, taking into account that the burden of proof for such justification lies with the Government (see D. H. and Others v. the Czech Republic [GC], no. 57325/00 , § 177, ECHR 2007-IV). 38. The Court accepts that the difference in treatment complained of pursued at least one legitimate aim, namely the protection and organisation of the country's economic and social system (see Ribać , cited above, § 61, and, mutatis mutandis , Andrejeva v. Latvia [GC], no. 55707/00 , § 86, ECHR 2009). . As regards the Government's argument that the applicant had remained in active military service in the YPA, which was considered an aggressor army (see paragraph 33 above), the Court observes that the requirement of non-participation in aggression against Slovenia (section 2(3) of the 1998 Act; see paragraph 22 above) applied to all potential beneficiaries of pension rights under section 2(1), including those of Slovenian nationality (see Ribać , cited above, § 63). In any event, the domestic authorities indicated that there was nothing in the case file before them to suggest that the applicant took part in any aggression against Slovenia (see paragraphs 12-16 above). The Court therefore rejects this argument by the Government. 40. As to the Government's argument that the applicant should have joined the Territorial Defence to secure his social welfare entitlements (see paragraph 33 above), the Court notes that in order to be considered a beneficiary under section 2(1)(3) of the 1998 Act (see paragraph 22 above) the applicant would still have had to fulfil the conditions for entitlement to a pension under the military rules by 1 February 1992. Since the applicant only fulfilled the conditions under the military rules in April 1992 - a fact which is not disputed by the Government - his only option would be to be considered a beneficiary under section 2(4) of the 1998 Act, which included a citizenship requirement. This provision does not differentiate, with respect to eligibility for pensions, between the active military personnel of the former YPA who joined the Territorial Defence and the ones, like the applicant, who did not. 41. As regards the Government's argument that the applicant's rights had been the subject of succession negotiations (see paragraph 34 above), the Court reiterates that Slovenia cannot be absolved of its responsibility under Article 14 of the Convention on the grounds that the matter at that time was not regulated by a succession agreement (see Ribać , cited above, § 65). 42. With respect to the differences in the retroactive application of section 15 of the amended 1998 Act (see paragraph 23 above), the Court notes that apart from relying on domestic legal obligations relating to State succession (see paragraph 34 above), the Government advanced no reasons for differential treatment to be given on the grounds of citizenship acquired under section 40 of the Citizenship Act and, like in the applicant's case, by way of naturalisation. 43. Lastly, the Court cannot accept the Government's argument that the applicant could have obtained citizenship and the pension rights earlier had he given up his Serbian citizenship following his 1999 application for citizenship (see paragraph 33 above). The prohibition of discrimination enshrined in Article 14 of the Convention is meaningful only if, in each particular case, the applicant's personal situation in relation to the criteria listed in that provision is taken into account exactly as it stands. To proceed otherwise, by dismissing the victim's claims on the ground that he or she could have avoided the discrimination by altering one of the factors in question - for example, by acquiring a nationality - would render Article 14 devoid of substance (see Andrejeva , cited above, § 91). 44. In the light of the above, the Court does not see any reasons to depart, in the present case, from its findings in the case of Ribać (cited above, §§ 61-67) and concludes that the difference in treatment complained of had no objective and reasonable justification. There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. 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." A. Damage 46. The applicant claimed 84,594 euros (EUR) in respect of pecuniary damage, corresponding to the outstanding pension instalments between 1 May 1992 and 4 February 2003. Referring to domestic statutory default interest rates, he further claimed interest until the date of payment, which on 22 November 2016 amounted to EUR 133,160. The applicant also claimed EUR 50,000 in respect of non-pecuniary damage. 47. The Government disputed the claim for pecuniary damage as excessive. They maintained that the applicant would have met the age requirement for early retirement pension entitlement under section 2(4) of the 1998 Act on 27 October 1994. They further argued that the exchange rate applied by the applicant had been wrong and that the statutory default interest was excessive. The Government also disputed the claim for non-pecuniary damage as unjustified and unsubstantiated. 48. The Court reiterates that the principle underlying the provision of just satisfaction is that the applicant should, as far as possible, be put in the position he or she would have enjoyed had the violation of the Convention not occurred. Furthermore, the indispensable condition for making an award in respect of pecuniary damage is the existence of a causal link between the damage alleged and the violation found (see, for instance, Andrejeva , cited above, § 111). In the light of the foregoing, the Court awards the applicant EUR 44,853 as compensation for the unpaid pension instalments to which he would have been entitled between October 1994 and February 2003 had the violation of Article 14 not occurred. To this some interest should be added, reflecting the inflation rates since the relevant period (see Ribać , cited above, § 72). It therefore awards him EUR 70,000 in respect of the pecuniary damage sustained. 49. Making its assessment on an equitable basis, the Court also awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount (see Ribać , cited above, § 73). B. Costs and expenses 50. The applicant also claimed EUR 3,420 for the costs and expenses incurred before the domestic courts and before the Court. 51. The Government contended that the amount was unfounded and excessive. 52. In accordance with the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Moreover, the Court reiterates that it does not consider itself bound by domestic scales and practices, although it may derive some assistance from them (see, among many examples, Gaspari v. Slovenia , no. 21055/03 , § 83, 21 July 2009). Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the entire amount claimed. C. Default interest 53. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 70,000 (seventy thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii) EUR 3,420 (three thousand four hundred and twenty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 19 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Andrea Tamietti Georges Ravarani Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII