Last Updated on October 3, 2020 by LawEuro
FOURTH SECTION
DECISION
Application no. 60681/17
Jovan SRDIĆ
against Slovenia
The European Court of Human Rights (Fourth Section), sitting on 27 November 2018 as a Committee composed of:
Georges Ravarani, President,
Marko Bošnjak,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 16 August 2017,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Jovan Srdić, is a Slovenian national who was born in 1947 and lives in Ljubljana.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. Between 1968 and 1973 the applicant spent several years working for different employers in Vojvodina (then an autonomous province of Serbia in the Socialist Federal Republic of Yugoslavia (“the SFRY”), now an autonomous province of the Republic of Serbia).
4. The applicant moved to Slovenia in 1974 and has lived there since then. Following the dissolution of the SFRY, he obtained Slovenian citizenship.
1. The 1979 decision
5. On 17 August 1979 the applicant asked the Pension and Disability Insurance Community of the Socialist Republic of Slovenia (hereinafter “the Community”) to determine the number of years of pensionable service he had. On 4 October 1979 the Community issued a decision in which it noted that the time between 23 March 1968 and 20 December 1973, when the applicant had been working for different employers in Vojvodina, was included in his insurance period and that he had in total three years, six months and twenty-two days of pensionable service (hereinafter “the 1979 decision”).
2. Pension proceedings
6. On an unknown date in 2011 the applicant applied for retirement in Slovenia. He voluntarily paid contributions into the Slovenian compulsory pension insurance until 30 April 2012.
7. On 22 August 2012 the Pension and Disability Insurance Institute of Slovenia (hereinafter “the Institute”) decided that the applicant was entitled to a monthly disability pension in the amount of 193 euros (EUR) starting from 1 May 2012.
8. The applicant appealed, complaining that the Institute had erred in calculating the pension by not taking into account the period of employment he had completed in Vojvodina (see paragraph 3 above), and the period he had completed between 1981 and 1987 in Slovenia.
9. On 9 May 2013 the Institute allowed the appeal in part, assessing the applicant’s disability pension at EUR 224. As to the years of pensionable service the applicant had completed in Vojvodina, the Institute, relying on section 187(1) of the Pension and Disability Insurance Act (see paragraph 16 below), and the Agreement on Social Security between the Republic of Slovenia and the Republic of Serbia (hereinafter “the Agreement”, see paragraph 17 below), held that it would have considered those if the applicant had not fulfilled conditions for a Slovenian pension without accumulating the years of pensionable service in both Serbia and Slovenia.
10. The applicant subsequently applied for judicial review of the Institute’s decision, maintaining that his pension had been erroneously calculated because the Institute had not taken into account the 1979 decision (see paragraph 5 above). In his opinion the Institute had misinterpreted the provisions of the Agreement (see paragraph 17 below). Furthermore, the applicant maintained that the social insurance contributions he had paid in Vojvodina had been transferred to Slovenia.
11. On 19 September 2014 the Ljubljana Labour and Social Court assessed the applicant’s disability pension at EUR 234. In calculating the amount, the court refused to take into account the years of pensionable service the applicant had completed in Vojvodina. It held that, contrary to the applicant’s interpretation, the 1979 decision only determined the number of years of pensionable service the applicant had completed in Vojvodina, and had neither conferred any right on the applicant nor had it determined that the period at issue should be considered Slovenian. Moreover, the applicant had not proved that the contributions which had been paid to the Serbian pension authorities had been transferred to Slovenia. The court reiterated that according to the Agreement, the years of pensionable service the applicant had completed in Serbia would not be taken into account when calculating the Slovenian pension, but they could still be valid in Serbia.
12. On 26 February 2015 the Higher Labour and Social Court dismissed an appeal lodged by the applicant, reiterating the lower court’s findings. It emphasised that in the SFRY the social insurance contributions had been paid to the authorities where the person had been working, and that the years of pensionable service the applicant had completed in Vojvodina were thus considered to be Serbian.
13. The applicant lodged an appeal on points of law, arguing that his contributions had been transferred to Slovenia with the 1979 decision (see paragraph 5 above), which had recognised the years of pensionable service at issue as Slovenian.
14. On 24 November 2015 the Supreme Court dismissed the appeal on points of law, following the lower courts’ reasoning. It reiterated that the Institute, by calculating the applicant’s disability pension in accordance with Article 21 of the Agreement (see paragraph 17 below), had not interfered with his acquired rights, and had not denied the existence of the years of pensionable service the applicant had completed in Vojvodina. According to Article 35(5) of the Agreement, the insurance period between 23 March 1968 and 20 December 1973 (with interruptions) was considered to be Serbian and was, therefore, not to be taken into account by the Slovenian insurance fund.
15. On 22 February 2017 the Constitutional Court refused to accept a constitutional complaint lodged by the applicant for consideration, finding that it did not concern an important constitutional question or entail a violation of human rights with serious consequences for the applicant.
B. Relevant domestic and international law
1. The Pension and Disability Insurance Act
16. The relevant provisions of the Pension and Disability Insurance Act (Official Gazette no. 109/06, with relevant amendments), as applicable at the material time, read as follows:
Section 187
“(1) The years of pensionable service, determined as the condition for the acquisition and assertion of rights under compulsory insurance, shall include:
…
– the period of time completed prior to the enactment of the present Act, which shall be included in the years of pensionable service of a Slovenian citizen under regulations in force prior to the enactment of the present Act, unless otherwise stipulated by this Act or an international agreement.
…”
2. The Agreement on Social Security between the Republic of Slovenia and the Republic of Serbia
17. The Agreement came into force on 1 November 2010. Its relevant provisions read as follows:
Article 20
Accumulation of Insurance Periods
“(1) If an insured person has completed an insurance period under the legislation of both Contracting Parties, the insurance periods shall be accumulated for the purposes of obtaining, maintaining or resuming the right to the benefits, provided that the periods do not overlap.
…
(3) The insurance periods completed in the other Contracting Party are taken into account in their actual duration …”
Article 21
Determination of Independent Benefit
“If there is a right to a benefit under the legislation of one of the Contracting Parties without the accumulation of the insurance periods, the competent institution of that Contracting Party shall determine the amount of the benefit payable exclusively on the basis of the insurance period completed under its legislation.”
Article 22
Determination of Proportioned Benefit
“If an insured person … is eligible for a benefit solely through the application of Article 20 of this Agreement, the eligibility of that person for that benefit shall be determined in the following manner:
(1) the competent institution of each Contracting Party shall determine whether the person is eligible for a benefit under its legislation through the accumulation of the insurance periods of Article 20 of this Agreement;
(2) the competent institution of each Contracting Party shall calculate the theoretical amount of the benefit which would be payable if the total insurance period, taken into account for calculating the amount of the benefit, had been completed under its legislation…
(3) on the basis of that [theoretical] amount the competent institution of each Contracting Party shall then calculate the actual amount of the benefit payable according to the ratio between the insurance periods completed under its own legislation and the total insurance periods;…”
Article 35
Right to Receive Benefit
“(1) This Agreement shall not confer any right to receive a benefit before the date of entry into force of this Agreement.
(2) Any insurance period completed under the legislation of any of the Contracting Parties before the date of entry into force of this Agreement shall be taken into account for the purpose of determining the right to a benefit under this Agreement.
…
(5) Notwithstanding the provisions of Article 20(3) of this Agreement, any insurance period completed before 7 October 1991 under the legislation of both Contracting Parties in force at the time … in the SFRY is taken into account in so far as it was recognised under that legislation …”
COMPLAINTS
18. The applicant complained that he had been denied a higher disability pension because the domestic authorities had misinterpreted the relevant domestic and international legal provisions and had not taken into account the 1979 decision which determined the number of years of pensionable service he had completed in Vojvodina. He relied on Articles 6, 8, 13 and 14 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 to the Convention.
THE LAW
A. Complaint under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14
19. The applicant complained that he had been denied a higher disability pension because the years of pensionable service he had completed in Vojvodina had not been taken into account when calculating his Slovenian pension. He relied on Article 1 of Protocol No. 1 and Article 14 of the Convention, which read as follows:
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.”
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.”
20. The Court reiterates that Article 1 of Protocol No. 1 only applies to a person’s existing possessions and does not guarantee the right to acquire possessions (see Marckx v. Belgium, 13 June 1979, § 50, Series A no. 31). It follows that there is no right under Article 1 of Protocol No. 1 to the Convention to receive a social security benefit or pension payment of any kind or amount, unless national law provides for such an entitlement (see Damjanac v. Croatia, no. 52943/10, § 87, 24 October 2013). In view of this principle, the Court needs to assess whether there was a sufficient legal basis in domestic law for the applicant to claim the payment of his pension in Slovenia in respect of his years of service completed on the territory of the SFRY (Vojvodina) but outside Slovenia (see, mutatis mutandis, Kopecký v. Slovakia [GC], no. 44912/98, § 54, ECHR 2004‑IX).
21. The Court observes that both the Institute and the domestic courts at three levels interpreted the 1979 decision and the Agreement differently from the applicant (see paragraphs 9, 11, 12 and 14 above). In particular, they concluded that, contrary to his submissions, the 1979 decision (see paragraph 5 above) conferred no rights on the applicant and had not given him grounds for claiming from the Slovenian authorities the payment of pension for the years of service in Vojvodina. Pursuant to Articles 20 to 22 of the Agreement (see paragraph 17 above) and the domestic courts’ interpretation of the relevant rules (see paragraphs 11, 12 and 14 above), the insurance periods completed in Serbia were to be taken into account only if a person had not fulfilled the eligibility criteria for pension solely on the basis of the insurance periods completed in Slovenia. However, the applicant was eligible for pension on the basis of the insurance periods he had completed in Slovenia. Therefore, his insurance periods from Vojvodina were considered irrelevant for the purposes of calculating his pension by the domestic pension authorities.
22. Bearing in mind that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, even when that law refers to international law or agreements (see Damjanac, cited above, § 91), the Court finds that neither the 1979 decision nor the Agreement could be considered as giving rise to a legitimate expectation on the part of the applicant that he would be entitled to claim from the Slovenian authorities the payment of his pension for the years of service in Vojvodina. Accordingly, the applicant did not have a “possession” within the meaning of Article 1 of Protocol No. 1. His complaint under this provision is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.
23. As regards the applicant’s Article 14 complaint that he had been discriminated against by comparison with Slovenian citizens who, unlike him, have remained working in Slovenia their entire working lives, the Court reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. The application of Article 14 presuppose that the facts of the case fall “within the ambit” of one or more of the provisions in question (see, among many other authorities, Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009).
24. The Court concluded that the facts of the case do not fall within the ambit of Article 1 of Protocol No. 1 (see paragraph 22 above). It follows that Article 14 is likewise not applicable and that this part of the application should also be rejected as being incompatible ratione materiae with the provisions of the Convention according to Article 35 §§ 3 and 4.
B. Remaining complaints
25. The applicant complained, citing Articles 6 and 8 of the Convention and Article 2 of Protocol No. 4 to the Convention, that by denying him a higher disability pension his right to respect for private life and the right to freedom of movement had been violated, and that he had not had fair pension proceedings. Lastly, he complained under Article 13 that the Constitutional Court had initially accepted his constitutional complaint for consideration but had later changed its decision.
26. The Court has examined the applicant’s remaining complaints. However, in the light of all the material in its possession, and so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the Articles he relied on. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 December 2018.
Andrea Tamietti Georges Ravarani
Deputy Registrar President
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