CHROUST v. THE CZECH REPUBLIC
Inadmissible
The applicant, Mr Miroslav Chroust, is a Czech national who was born in 1949 and lives in Prague. He was represented before the Court by Mr E. Janča, of the Czech Bar. The respondent Government were represented by their Agent, Mr V.A. Schorm. The facts of the case, as presented by the parties, may be summarised as follows. In 1972 the applicant joined the armed forces: he worked as a warder in the prison service, then in the police (National Security Corps at the time) until 16 February 1990, the Bureau for the Protection of the Constitution and Democracy, the Federal Security Intelligence Service (Federální bezpečnostní informační služba) – which was dissolved on 31 December 1992 by Law no. 543/1992 – and, from 1 January 1993 to 30 April 1994, in the Security Intelligence Service of the Czech Republic (Bezpečnostní informační služba České republiky – “the SIS”). On that last date he stopped working and applied for a service allowance (příspěvek za službu), as provided for by law. On 3 June 1994 the Social Security Department of the Ministry of the Interior decided, by virtue of sections 129 and 130 of Law no. 527/1992 on the SIS, and having regard to the fact that the applicant had served in the armed forces for twenty-three years, to grant him a service allowance as of 1 May 1994. On 1 December 1994 and 28 June 1995 the Director of the SIS informed the applicant that his allowance had been increased. On 26 April 1996 the Director of the SIS informed the applicant that the increase in his allowance had been wrongfully awarded as it did not apply to allowances awarded under Law no. 527/1992, and ordered him to refund the surplus. He did, however, confirm the applicant’s entitlement to the service allowance as determined on 3 June 1994. The applicant challenged the decision, alleging that the SIS had a duty to pay and adjust his allowance. Having obtained no satisfaction from the SIS, he asked the Prague 5 District Court (Obvodní soud) to order the SIS to increase his allowance. The court issued a decision of non-jurisdiction, terminating the proceedings. It also noted that it had not been for the Ministry of the Interior to take the decision concerning the applicant’s initial application for an allowance when he left the service, and that the decision of 3 June 1994 was therefore void. The case was referred to the Director of the SIS. On 27 July 2000 the Director of the SIS decided, with immediate effect, that the applicant was not entitled to a service allowance. He noted that the decision of 3 June 1994 had been taken by an authority that had no power to take such a decision as it was a matter for the Director of the SIS to decide. That being so, he decided that the applicant did not meet the length-of-service requirement as, under section 158 of Law no. 527/1992, only the periods of service after 16 February 1990 could be taken into account. On 21 August 2000 the applicant appealed, arguing that his right to receive the disputed allowance had been acknowledged by previous acts of the Director of the SIS and that his years of service from 1972 to 1990 should also be taken into account. In a decision of 5 January 2001, the Director of the SIS rejected the appeal and upheld the earlier decision. He maintained, first of all, that his predecessor’s actions, on 1 December 1994, 28 June 1995 and 26 April 1996, had been merely informative and could not be considered formal decisions; the first formal decision had been that of 27 July 2000. As to the period of service that should be taken into consideration when determining entitlement to the allowance, the Director considered, having examined the relevant provisions of Law no. 572/1992, that in the present case only the years of service after 1990 could be taken into account. He also noted that each Law contained its own regulations governing the conditions under which the service allowance should be granted, and that in so far as entitlement to the allowance was linked to the beneficiary’s leaving the armed forces, the obligations transferred by virtue of section 35 of Law no. 244/1991 could not include those concerning the service allowance. On 14 March 2001 the applicant lodged an appeal with the Prague Municipal Court (Městský soud) to have the decisions of 27 July 2000 and 5 January 2001 reviewed. He complained that he had been deprived of a “welfare” benefit he had been awarded by an allegedly correct final decision (res judicata) and challenged the selective and discriminatory interpretation of Law no. 572/1992 developed in the impugned decisions. Other categories of staff assigned to comparable duties were treated differently in that they received the allowance in issue, he argued. On 15 March 2001 the applicant challenged the same decisions in a constitutional appeal, alleging that they violated the principles of equality and legal certainty, as well as the principles of the rule of law according to which public authority must be exercised within the limits of the law and administrative acts are presumed to be valid. In this appeal he reiterated the objections raised in his 14 March 2001 appeal concerning the discriminatory interpretation of section 158 of Law no. 527/1992, the different treatment to which he alleged he had been subjected and the fact that he had been deprived of a “welfare” benefit. In supplementary pleadings dated 27 November 2001 the applicant complained that he had been discriminated against and, to all intents and purposes, penalised for having worked for the SIS, arguing that if he had left the armed forces on 31 December 1992 he would have been entitled to the disputed allowance (under Law no. 100/1970). On 11 March 2002 the Municipal Court terminated the proceedings, pointing out that under the relevant provisions of the Code of Civil Procedure and new Law no. 154/1994 on the SIS the courts no longer had jurisdiction to review decisions taken by the SIS. On 27 August 2002 the Second Section of the Constitutional Court (Ústavní soud) rejected the applicant’s appeal as manifestly ill-founded. It held that the applicant was merely disputing the findings of the impugned decisions, though these were based on an interpretation which remained within the bounds of the Constitution. Given that the decision of 3 June 1994 (whereby the applicant was initially granted the disputed allowance) had been taken by a body without authority to take it, the Constitutional Court considered it null and void. The applicant enclosed a judgment delivered by the Fourth Section of the Constitutional Court on 9 October 2003 in a similar case concerning V.M. (see “Relevant domestic law and practice” below). On 11 February 2001 the applicant submitted a new application for an allowance to the Social Security Department of the Ministry of the Interior in respect of the time he had served in the armed forces up to 31 December 1992, prior to joining the SIS. He alleged that, when he had moved from the National Security Corps to the Federal Security Intelligence Service (in keeping with the provisions of section 35(1) of Law no. 244/1991), he had acquired the right to the service allowance by virtue of Law no. 100/1970, and that the corresponding obligation had been transferred to the Federal Security Intelligence Service and subsequently, upon the liquidation of the Federal Security Intelligence Service, to the Czech Republic (by virtue of section 9(4) of Law no. 543/1992). The application was forwarded to the SIS, whose Director informed the applicant in a letter dated 21 November 2002 that he had no right to the allowance as his period of service had not terminated on 31 December 1992 in such a way as to entitle the applicant to claim the allowance under the provisions of Law no. 100/1970. As there was no entitlement, the obligation to pay the allowance could not have been transferred to the SIS and there was no reason to take a decision. Considering that his request had not been duly processed, the applicant took court action challenging the inactivity of the SIS. He mentioned that there were three other people in the same situation and that in one of those cases (V.M.’s) the Constitutional Court had found a violation of the Constitution. On 27 October 2004 the Prague Municipal Court dismissed the claim, affirming that when the SIS had ruled on 27 July 2000 on the applicant’s initial 1994 claim it had taken into account the applicant’s service during the period when Law no. 100/1970 was in force, and concluded that his right to the impugned allowance did not exist as at 31 December 2002. As decisions on the merits of the applicant’s claim had been handed down on 27 July 2000 and 5 January 2001, even though the applicant disagreed with them, there was no reason to order the SIS to reconsider its decision. The court also reiterated that, under Law no. 100/1970, those persons who had taken on new functions in the armed forces were not entitled to the service allowance, that the applicant’s employment in the Federal Security Intelligence Service had come to an end with that body’s disappearance on 31 December 1992, which had entitled him to severance pay (but not the service allowance), and that since 1 January 1993 his rights and obligations had been governed by Law no. 527/1992. That Law made it quite clear that only service completed in institutions protecting the principles of democratic government should be taken into account when calculating length of service. As to the difference between the applicant’s situation and that of V.M., the court pointed out that the Constitutional Court had not examined whether their respective claims to the allowance were legitimate, but simply whether the decision of the Ministry of the Interior had been valid, having regard to the assumption that administrative acts are valid. On 13 December 2004 the applicant challenged this judgment on points of law and that appeal was still pending on 27 October 2005, the date of the Government’s submissions. Section 110(1) states that members of the aforesaid Corps who apply to terminate their “relation of service” (služební poměr) or are dismissed for certain specific reasons are entitled to a service allowance. Under section 110(3) the allowance is not payable to people who take up (new) functions in the armed forces. Similar provisions concerning service allowances are to be found in the Laws regulating service in the Czech police (no. 186/1992) and regular members of the armed forces (no. 221/1999). Under section 35(1) of this Law, members of the National Security Corps who occupied posts in the Federal Intelligence Service became members of the Federal Security Intelligence Service as of the day on which this Law came into force; on that same day the rights and obligations associated with their service were transferred from the Ministry of the Interior to the Federal Security Intelligence Service. Section 35(2) stipulated that until laws were passed regulating the relation of service of the members of the Federal Security Intelligence Service, that relation was to be regulated by Law no. 100/1970. Under section 9(1) the relation of service of members of the Federal Security Intelligence Service ended with the Service’s dissolution on 31 December 1992; the persons concerned were entitled to severance pay. Under the terms of section 9(4) the rights and obligations arising out of the relation of service thus terminated which had not been assumed by the Federal Security Intelligence Service were transferred to the State. Under section 129(1) the service allowance was payable to those members of said service who applied to terminate their service or were dismissed for certain specific reasons. Under the terms of section 129(2) a person who immediately entered into a relation of service regulated by another law upon termination of his or her service under this Law was not entitled to the allowance. Under section 130(1) the allowance was payable to members who had been in service for at least ten years, or had reached the age of 50 by the time they left. Section 158 stipulated that when an employee of the Federal Ministry of the Interior took up service in accordance with this Law after previously occupying a post in the Bureau for the Protection of the Constitution and Democracy or the Federal Intelligence Service, or being a member of the Federal Security Intelligence Service, the service completed therein and the resulting rights were to be considered as being part of the service completed under this Law. Under section 120(1) the service allowance is payable to members who served for at least ten years in the bodies mentioned in section 116. Section 116 stipulates that the periods served by members of the National Security Corps who occupied posts in the Bureau for the Protection of the Constitution and Democracy or the Federal Intelligence Service, and also the time served in the Federal Security Intelligence Service and the Security Intelligence Service of the Czech Republic are taken into account. The applicant, V.M., was deprived of his service allowance by a decision of the Director of the SIS after receiving it for six years by virtue of a decision of the Social Security Department of the Ministry of the Interior. The Constitutional Court held that his application was justified, considering that it was necessary to protect the applicant’s good faith and that the Social Security Department had the power to decide to whom the allowance should be awarded, that power having been transferred to it by the SIS in an agreement concluded between them (which had been in force from 1991 to 1995). The Constitutional Court accordingly set aside the disputed decisions of the Director of the SIS, considering that they had violated the applicant’s fundamental rights, as well as constitutional principles. While it did not have the authority to decide whether V.M. was entitled to the allowance, the Constitutional Court noted that when that matter was examined, the criteria specified in the Strasbourg Court’s judgment in Bucheň v. the Czech Republic (no. 36541/97, 26 November 2002) could not be ignored.