HAMPEK v. SLOVAKIA
Inadmissible
Nicolas Bratza
The applicant, Mr Petr Hampek, is a Slovakian national who was born in 1944 and lives in Banská Bystrica. Having been granted legal aid, the applicant is represented by Ms Z. Bejdová, a lawyer practising in Banská Bystrica. The respondent Government are represented by Mrs A. Poláčková, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was employed and, as such, contributed to the State pension scheme (dôchodkové zabezpečenie). On 1 February 1999 he retired and started receiving a retirement pension. In July 1999 the applicant restarted working as a night watchman. As he was simultaneously receiving a retirement pension, he acquired the status of an “employed pensioner”. Being employed, he was liable to pay income tax on his salary. Being a pensioner, he was not entitled to have a so-called “untaxable amount” deducted from his income tax base unlike other employed persons. On 1 January 2000 an amendment (Law no. 345/1999 Coll.) to the Social Security Administration Act (Law no. 274/1994 Coll. – “the SSA Act”) entered into force. It cancelled an exemption, which employed pensioners had enjoyed until then, from the obligation to pay contributions to the State pension scheme. The applicant thus became liable to contribute to this fund like any other employed person. On 1 August 2000 another amendment (Law no. 232/2000 Coll.) to the SSA Act entered into force which re-introduced the above exemption. Between 1 January and 1 August 2000 the applicant paid 2,138 Slovakian korunas (SKK) in contributions to the pension scheme. The applicant unsuccessfully requested the President, the Prosecutor General, the National Council and the Constitutional Court to bring about a change in the relevant legislation. In a letter of 25 October 2000 the Prosecutor General informed the applicant that employed pensioners were not eligible for the deduction of the untaxable amount from their income tax base unless the total of their pension was less than the untaxable amount. If their pension was below the untaxable amount, an amount equal to the difference between the actual pension and the untaxable amount would be deducted from the tax base on their salary. The letter further explained that the purpose of the pension scheme was to provide income for persons who were unable to provide for themselves by working, for example on account of their retirement age. As the State allowed retired persons to obtain income from employment in addition to their retirement pension, it was justified to impose certain restrictions on them, for example by taxing their salaries. As for the applicant’s complaint that he was liable to contribute to the pension fund, he was informed that as from 1 August 2000 the rules had changed (see above). On 13 November 2000 the applicant brought an action against the State in the form of the Ministry of Labour and Social and Family Affairs in the Banská Bystrica District Court (Okresný súd). He sought repayment of the contributions which he had paid to the pension scheme between January and July 2000 (see above). On 22 November 2000 the Banská Bystrica District Court forwarded the action to the Bratislava I District Court on the ground that it fell within the territorial jurisdiction of the latter court. On 13 December 2000 the Bratislava I District Court submitted the question of jurisdiction to the Supreme Court (Najvyšší súd), which ruled on 26 April 2001 that the action should be determined at first instance by the Bratislava I District Court. However, the case file was only forwarded to that court on 25 June 2001. On 18 June 2001 the District Court requested the defendant to submit observations in reply, which the Ministry did on 25 July 2001. The District Court scheduled a hearing for 29 November 2001. The applicant stated that he would not be able to appear. He submitted his arguments in writing and requested the court to hear the case in his absence. On 29 November 2001 the District Court held a hearing following which, on the same day, it dismissed the action. Having heard the defendant’s representative and having examined complex documentary evidence, the court found that the amount claimed had been withheld from the applicant’s salary under the relevant provisions of the SSA Act. The Ministry had not breached any legal obligation and thus could not be held responsible for any loss incurred by the applicant. The judgment of 29 November 2001 was served on the applicant on 20 June 2002. On 2 July 2002 he appealed arguing that the bill for the amendment no. 345/1999 Coll. had been drafted by the Ministry and that, therefore, it was the Ministry which was liable for the damage caused to him by implementing that amendment. On 25 July 2002 the District Court requested the defendant to submit observations in reply to the appeal, which the Ministry did on 13 August 2002. The Bratislava Regional Court (Krajský súd) listed a hearing of the appeal for 8 May 2003. The applicant stated that he would not be able to appear. He requested the court to hear the case in his absence and submitted his arguments in writing. On 14 May 2003 the Regional Court upheld the first-instance judgment. It observed that before a bill became law it was subject to a complex legislative process. Drafting and submitting a bill as such could not engage liability for damage. There was no indication that the Ministry had breached any legal duty in connection with the process of amending the SSA Act. The appellate court’s judgment was served on the applicant on 27 August 2003. On 6 May 2002 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). He directed the complaint against the Bratislava I District Court and argued, in substance, that the length of the proceedings had been excessive. He claimed SKK 100,000 by way of just satisfaction. On 7 October 2002, on his request, the Constitutional Court appointed an ex officio lawyer to the applicant and, at the same time, declared the complaint admissible. In 26 March 2003 the applicant requested his lawyer for a report on the progress of the proceedings. In a letter of 31 March 2003 the lawyer informed the applicant that at the Constitutional Court’s request he had provided further and better particulars of the complaint and had agreed to the Constitutional Court deciding on the case without holding an oral hearing. In a letter of 18 August 2003 the applicant informed the lawyer that, by accepting that there would be no public hearing before the Constitutional Court, the lawyer had acted contrary to the applicant’s right to be heard in court. On 28 August 2003 the applicant made a written submission to the Constitutional Court in which he sought to include in his constitutional complaint the undue delays in the proceedings before the Regional Court. On 10 September 2003 the Constitutional Court found that the Bratislava I District Court had violated the applicant’s right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution) and “within a reasonable time” (Article 6 § 1 of the Convention). It awarded the applicant SKK 5,000 by way of just satisfaction in respect of his nonpecuniary damage and ordered the reimbursement of his legal costs. The Constitutional Court found that the overall length of the proceedings had been 2 years and 8 months. During that period, the case had been pending before the Supreme Court for 6 months and before the Bratislava Regional Court for 11 months. However, the subject-matter of the constitutional proceedings had been determined by the admissibility decision of 7 October 2002 which, as the applicant’s original complaint, concerned the proceedings before the District Court alone. Therefore, in the framework of the present constitutional proceedings, it was not possible to examine the proceedings before the Regional Court which the applicant had contested after the admissibility decision. As regards the proceedings before the Bratislava I District Court, the Constitutional Court found that an unjustified delay had occurred between 29 November 2001 and 13 June 2002 (i.e. approximately 6 months). All human beings are equal in dignity and rights (Article 12 § 1) regardless of sex, race, colour, language, faith, religion, political affiliation or conviction, national or social origin, nationality or ethnic origin, property, birth or any other status (Article 12 § 2). Every person has the right to have his or her case tried without unjustified delay (Article 48 § 2). Income from employment is subject to personal income tax (section 3 (1) (a) in conjunction with section 6 (1)). The personal income tax base is in general calculated as the difference between the income and the expense incurred in order to achieve it (section 5 (1)). The tax base does not comprise income exempted from tax (section 5 (5)) such as, for example, a retirement pension (section 4 (1)). Section 12 defines untaxable amounts which are to be deducted from the tax base. These include inter alia SKK 38,760 per year in respect of the taxpayer himself (subsection 2 (a)). This amount cannot be deducted if the taxpayer was receiving a retirement pension at the beginning of the taxation period unless the total of the pension is less than the above untaxable amount. In the latter case the taxpayer can deduct the difference between the untaxable amount and the pension received (subsection 4). Employed persons (zamestnanci) and their employers are liable to pay contributions to the pension scheme (section 14 (1) (a) and (d)). Employed persons, who were receiving a retirement pension, were exempted from such liability (section 14 (7) (e)) until 1 January 2000. As from 1 January 2000 the exemption under section 14 (7) (e) was repealed by amendment no. 345/1999 Coll. and then reintroduced by amendment no. 232/2000 Coll. as from 1 August 2000. The amendment no. 232/2000 Coll. had been drafted by an individual member of the parliament. In the explanatory report (dôvodová správa) on the bill the deputy considered that the repeal of the exemption under section 14 (7) (e) had been contra bonos mores in that employed pensioners had been made to contribute to the pension scheme but had received nothing in return. The Ministry of Labour and Social and Family Affairs submitted the bill to the Cabinet with an introductory report (predkladacia správa) in which they disagreed with the drafter. According to this report the exemption in question had given an unjustified advantage to employed pensioners over other employed persons in that as no contributions had been associated with the employment of pensioners, the latter group had been a more attractive work force than other employees. This had distorted the labour market and had to be corrected by the amendment no. 345/1999 Coll. Another reason for that amendment had been the recent passive balance of the retirement pension fund. The situation of persons who are employed after becoming entitled to a retirement pension but do not draw such a pension is addressed in section 23. The amount of the pension to which they are entitled increases with the length of their employment after retirement age according to a formula defined in sub-section 1. If a person entitled to a retirement pension takes up employment, the retirement pension is suspended (section 98 (1)), unless the employment is for a term shorter than 1 year (section 98 (2)). On 1 January 2001 another amendment (Law no. 467/2000 Coll.) to the SSA Act entered into force. It again repealed the exemption under section 14 (7) (e) and provided that employed persons participate in the pension scheme and are liable to pay contributions to the pension fund (subsection 2). As from 1 January 2004 the SSA Act lost legal effect and the social security regulation was completely re-codified. Article 26 § 3 provides that national laws may provide that the benefit of a person otherwise entitled to it may be suspended if such a person is engaged in any prescribed gainful activity or that the benefit, if contributory, may be reduced where the earnings of the beneficiary exceed a prescribed amount and, if non-contributory, may be reduced where the earnings of the beneficiary or his other means or the two taken together exceed a prescribed amount.