CASE OF TRICKOVIC v. SLOVENIA
No violation of Art. 6-1
Elisabeth Palm;Gaukur Jörundsson
9. The applicant is a Slovenian national of Serbian origin. He was born in 1944 and lives in Ljubljana. He was employed as a medical technician in the Yugoslav People’s Army. In the summer of 1991, after Slovenia became independent following the dissolution of the former Yugoslavia, the applicant worked in the Federal Army Hospital in Ljubljana. 10. As the Federal Army withdrew from Slovenia in October 1991, the applicant, who had been declared disabled, applied for an invalidity pension. In December 1991 the Federal Military Social Security Fund in Belgrade granted him the right to retire on grounds of invalidity and paid him a pension until April 1992. 11. Following the dissolution of the former Yugoslavia and in the absence of an agreement on the succession or any relevant bilateral treaty, the Government of the Republic of Slovenia decided to provide for an advance payment of military pensions, since the Belgrade fund had ceased to pay former servicemen living in Slovenia. The purpose of this regulation was to find a temporary solution for retired military personnel and some other categories of military benefiting from the scheme, until the issues of the State succession had been settled. 12. The proceedings in question in the present case concern the applicant’s claim for an advance on his military pension. 13. On 5 June 1992 the applicant applied for an advance on his military pension under the Advance on Payment of Military Pensions Decree (Official Gazette no. 4/92 of 25 January 1992). 14. On 9 July 1992 the Pension and Invalidity Insurance Fund (Skupnost pokojninskega in invalidskega zavarovanja) found that the applicant had no right to advance payments. On 3 November 1992 the Pension and Invalidity Insurance Fund dismissed the applicant’s appeal. The applicant sought judicial review of those decisions. 15. On 2 March 1993 the Labour and Social Court in Ljubljana (Sodišče združenega dela pokojninskega in invalidskega zavarovanja Slovenije) dismissed the applicant’s action. On 7 July 1994 the Higher Labour and Social Court (Višje delovno in socialno sodišče) in Ljubljana upheld the lower court’s decision. The second-instance decision was served on 30 July 1994. 16. On 29 August 1994 the applicant lodged a constitutional appeal with the Constitutional Court (Ustavno sodišče) alleging breaches of his constitutional rights in the aforementioned proceedings. 17. On 23 May 1995 the Constitutional Court invited the applicant to complete his appeal. The Ljubljana Labour and Social Court and the Pension and Invalidity Insurance Fund were requested to submit records. The applicant filed supplementary submissions on 6 June 1995 but the Constitutional Court did not receive them until 13 June 1995. 18. On 6 October and 20 December 1995 a panel of three judges considered the case in the preliminary proceedings. On 20 December 1995 the Constitutional Court declared the applicant’s constitutional appeal admissible. 19. On 21 December 1995 the Constitutional Court asked the Higher Labour and Social Court to submit a statement, which was supplied on 17 January 1996. 20. On 5 December 1996 the plenary court began consideration of the merits of the applicant’s case. 21. In addition, the Pension and Invalidity Insurance Fund was asked on 6 December 1996 to submit its opinion. They complied with the request on 3 January 1997. 22. On 20 March, 10 April and 17 April 1997 the plenary Court held further deliberations. 23. On 17 April 1997 the Constitutional Court, by a majority, rejected the constitutional appeal as being manifestly ill-founded. The decision was served on 17 May 1997. 24. On 12 February 1999 the applicant applied for a pension under general pension and invalidity insurance regulations. 25. On 14 February 2000 the Pension and Invalidity Insurance Fund granted the applicant the right to his pension from 1 September 1998 onwards. 26. Article 160 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads, so far as it is relevant: ...on constitutional appeals of violation of human rights and fundamental freedoms by specific acts; ... Unless otherwise provided by law, the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted. The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures.” “Proceedings before the Constitutional Court shall be regulated by law. The law shall determine who may require proceedings to be instituted before the Constitutional Court. Anyone who demonstrates a legal interest may request the institution of proceedings before the Constitutional Court. The Constitutional Court shall decide on a majority vote of all its judges unless otherwise provided for in individual cases by the Constitution or by statute. The Constitutional Court may decide whether to institute proceedings following a constitutional appeal with such lesser number of judges as may be provided by statute.” 27. The Constitutional Court Act (Zakon o Ustavnem sodišču) governs the composition and functioning of the Constitutional Court. “The Constitutional Court is the highest body of judicial authority for the protection of constitutionality, legality, human rights and basic freedoms… Decisions of the Constitutional Court are legally binding.” Sections 50 to 60 of that Act concern constitutional appeals by individuals (see paragraph 26 above). “Any one who believes that his or her human rights and basic freedoms have been violated by a particular act of a state body, local community body or statutory authority may lodge a constitutional appeal with the Constitutional Court, subject to compliance with the conditions laid down by this Act. ...” “A constitutional appeal may be lodged only after all legal remedies have been exhausted. Before all special legal remedies have been exhausted, the Constitutional Court may exceptionally hear a constitutional appeal if a violation is probable and if certain irreparable consequences for the appellant would occur as a result of the implementation of a particular act.” “A constitutional appeal shall be lodged within sixty days after the date of the decision against which the constitutional appeal lies. ... In specially founded cases the Constitutional Court may exceptionally hear a constitutional appeal lodged after the expiry of the time-limit stated in the first paragraph of this section.” “The constitutional appeal must indicate the particular act which is the subjectmatter of the appeal and the facts that give rise to the allegation of a violation of human rights and basic freedoms on which the appeal is based. A constitutional appeal shall be lodged in writing. There shall be enclosed with it a copy of the particular act that is the subject-matter of the appeal and all documents forming the basis of the appeal. The appeal and annexed documents shall be lodged in triplicate.” Sections 54 and 55 govern the preliminary procedure. “A decision on whether a constitutional appeal is admissible and to institute proceedings shall be taken in private by a committee of three judges of the Constitutional Court. If the appeal is incomplete or if the Constitutional Court is unable to examine it because it does not contain all the required information or documents referred to in the preceding section of this act, the Constitutional Court shall require the appellant to complete the appeal within a specified time.” 28. Sections 56 to 60 set out the procedure for the adjudication of the constitutional appeal and provide: “If the constitutional appeal is found to be admissible, it shall be sent to the body which issued the act and against which the constitutional appeal has been lodged, so that it may reply to the constitutional appeal within a determined period.” “If a constitutional appeal is admissible, it shall be examined by the Constitutional Court in private unless the Constitutional Court decides to hold a public hearing.” “The Constitutional Court shall issue a decision declaring that the appeal was unfounded or shall accept the appeal and quash the act that was the subject of the appeal or declare it null and void in whole or in part, and return the matter to the competent body. ...” 29. Section 60 concerns the Constitutional Court’s decision if the appeal is upheld and reads: “If the Constitutional Court quashes an individual act, it may also decide a contested right or freedom if such procedure is necessary in order to put an end to consequences that have already occurred as a result of that act or if such is the nature of the constitutional right or freedom and provided that a decision can be reached on the basis of information in the record.”