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in the case of
ZIJAD ŠECERBEGOVIC, JOSIP BIOCIC and NIKOLA OROZ v. BOSNIA AND
HERZEGOVINA AND
THE FEDERATION OF BOSNIA AND HERZEGOVINA
(the “JNA Pension” cases)
(Cases No. CH/98/706, 740 and 776)
FACTUAL BACKGROUND
The applicants are citizens of Bosnia and Herzegovina living in the
territory of the Federation of Bosnia and Herzegovina. They are
former officers of the Yugoslav National Army (“JNA”) who retired
before 1992. Until the outbreak of the war in Bosnia and
Herzegovina they received their pensions from the Institute for
Social Insurance of Army Insurees in Belgrade, to which they had
paid contributions during their life as active soldiers. In
September 1992 the Republic of Bosnia and Herzegovina issued a
decree to the effect that pensioners of the JNA would be paid a
pension amounting to 50 percent of their previous pension. This
decision was confirmed by a law of the Republic of Bosnia and
Herzegovina passed in June 1994 and by Article 139 of the Law on
Pensions and Disability Insurance of the Federation of Bosnia and
Herzegovina, which entered into force on 31 July 1998.
This is the first decision of the Chamber in the matter of the JNA
pensions. There are more than 150 applications in this matter
pending before the Chamber.
The Chamber held a public hearing in these cases on 9 February
2000, during which the respondent Parties were assisted by senior
pension experts of the administration and the Pension and
Disability Insurance Fund of Bosnia and Herzegovina.
The Human Rights Ombudsperson for Bosnia and Herzegovina issued a
Special Report concerning the same subject matter (No. 2859/99 on
The Right of the Peaceful Enjoyment of Possessions and
Discrimination in the Enjoyment of this Right with Respect to
Article 139 of the Law on Pension and Disability Insurance). The
Ombudsperson also acted as amica curiae in the proceedings before
the Chamber.
FINDINGS OF THE CHAMBER
Admissibility
The Chamber noted that pensions are not among the matters within
the responsibilities of the institutions of the State of Bosnia and
Herzegovina listed in Article III of the Constitution of Bosnia and
Herzegovina (Annex 4 to the General Framework Agreement) and that
the State institutions did not take any action in this matter. The
Chamber also noted that until the entry into force of the
Federation Law on Pension and Disability Insurance on 31 July 1998,
the payment of an amount equivalent to 50 percent of the original
JNA pensions was due to legislation enacted by the Republic of
Bosnia and Herzegovina. However, the Chamber concluded that no
responsibility for the matter complained of can attach to the State
of Bosnia and Herzegovina. It therefore declared the applications
inadmissible insofar as they are directed against the State.
Merits
Article 1 of Protocol No. 1 to the European Convention on Human
Rights
The Chamber considered the applications under Article 1 of Protocol
No. 1 to the Convention, protecting the right to peaceful enjoyment
of possessions, and as an issue of possible discrimination in the
enjoyment of the right to social security, protected by Article 9
of the International Covenant on Economic, Social and Cultural
Rights.
With regard to the right to peaceful enjoyment of possessions, the
Chamber noted that the European Court and Commission on Human
Rights had considered that the right to a pension could, under
certain circumstances, amount to a possession protected by Article
1 of Protocol No. 1. It also noted, however, that the applicants
have not paid any contributions to the Pension Fund of Bosnia and
Herzegovina (the “PIO BiH”), and that they had no legal
relationship to that fund before the enactment of the 1992 Decree
on pension and disability insurance. The Chamber therefore
concluded that the applicants do not have a claim toward the PIO
BiH to receive the full JNA pensions which could be regarded as a
possession under Article 1 of Protocol No. 1. to the Convention.
Discrimination (Article 9 of the International Covenant on
Economic, Social and Cultural Rights)
Regarding the issue of discrimination in the enjoyment of the right
to social security, the Chamber first compared the position of the
applicants to that of the civilian pensioners insured with the PIO
BiH. The Chamber noted that the civilian pensioners had paid
contributions to the PIO BiH, while the applicants had paid their
contributions to the JNA Pension Fund in Belgrade. The Chamber
therefore concluded that the civilian pensioners were not in a
relevantly comparable situation to that of the applicants. It also
considered that, although the applicants received only an amount
equivalent to 50 percent of their original pension, they still
received payments higher than the average pension of the insurees
of the PIO BiH.
The Chamber then compared the situation of the applicants to that
of the former members of the JNA who subsequently served in the
Army of the Republic of Bosnia and Herzegovina or in the Army of
the Federation and retired as members of these armed forces. The
Chamber noted that these persons received credit for the time
served in the JNA for the purpose of their pension treatment. It
also noted that the average pension of this group (amounting to 573
KM) was considerably higher than the average payment received by
the JNA pensioners (325 KM) and the average pension of the civilian
pensioners (180 KM). The Chamber found, however, that the
difference in treatment between on the one hand the pensioners of
the Army of the Republic of Bosnia and Herzegovina and of the Army
of the Federation and, on the other hand, the JNA pensioners was
justifiable considering that the former had served in the armed
forces of the country whose pension fund paid their pensions. It
added that the favourable treatment of veterans was not a feature
peculiar to the society of the post-war Federation of Bosnia and
Herzegovina, and that the applicants still receive a higher pension
than the average pensioners.
To sum up, the Chamber decided that there had been no violation of
the applicants’ rights to peacefully enjoy their possessions under
Article 1 of Protocol No. 1 to the European Convention on Human
Rights and that the applicants had not been discriminated against
in the enjoyment of their right to social security under Article 9
of the International Covenant on Economic, Social and Cultural
Rights.
Mr. Masenko-Mavi attached a dissenting opinion to the decision.
Decision delivered 7 April 2000
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