SECOND SECTION
Applications nos. 37054/09 and 60930/10
Budislav MINIĆ against Montenegro
and Vojislav ĐURIŠIĆ against Montenegro
lodged on 18 June 2009 and 12 October 2010 respectively
STATEMENT OF FACTS
The applicant in the first case, Mr Budislav Minić (“the first applicant”), is a Montenegrin national, who was born in 1952 and lives in Kolašin. He is represented before the Court by Ms V. Simonović-Bulatović, a lawyer practising in the same town.
The applicant in the second case, Mr Vojislav Đurišić (“the second applicant”), is a Montenegrin national, who was born in 1938 and lives in Podgorica.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows:
1. The suspension of the applicants’ pensions and the ensuing administrative proceedings
Between 1993 and 1999 the applicants’ employments were terminated and they obtained their retirement papers.
Between August 1994 and May 1999 their pension entitlements, as well as the exact amount of their pensions, were established by the relevant decisions of the Pension Fund (Republički fond penzijskog i invalidskog osiguranja). The decisions allowed the applicants to resume working on a part-time basis.
Between December 1996 and January 1999 the applicants reopened their own legal practices on a part-time basis.
On 5 August 2005 and 7 November 2005 the Pension Fund suspended the payment of the first and second applicants’ pensions, respectively, until such time as they had ceased their professional activity. These decisions were all “deemed to be applicable as of 1 January 2004”, which was when section 112 of the Pension and Disability Insurance Act 2003 entered into force. The said section provided that one’s pension would be suspended should he or she resume working or establish a private practice, for as long as this activity continued.
The Pension Fund’s rulings were subsequently upheld by the Ministry of Labour and Social Welfare (Ministarstvo rada i socijalnog staranja), as well as, ultimately, by the Administrative Court (Upravni sud) in Podgorica on 28 September 2006 and 20 April 2007, respectively.
Finally, on 13 March 2007 and 17 September 2007, respectively, the Supreme Court (Vrhovni sud) in Podgorica dismissed the first and second applicants’ requests for judicial review of their cases (zahtjev za vanredno preispitivanje sudske odluke). In so doing, the Supreme Court explained, inter alia, that the applicants had not been deprived of their pension entitlements as such, but that the payment of their pensions had instead been only suspended pursuant to the relevant domestic legislation. The Supreme Court’s decision of 13 March 2007 was served on the first applicant on 20 December 2008. On an unspecified date thereafter the second applicant was served with the Supreme Court’s decision of 17 September 2007.
On 28 January 2010 the Constitutional Court (Ustavni sud) dismissed the first applicant’s constitutional appeal. The Constitutional Court held, in particular, that there was no violation of the first applicant’s right to property as his pension was not altogether abolished but only suspended for as long as he worked.
It would appear that the second applicant did not attempt to make use of this avenue of redress in respect of this set of proceedings.
The payment of the applicants’ pensions would appear to have been resumed as of 1 January 2009, when the said section 112 was repealed by virtue of the Amendments to the Pension Act 2003.
2. The civil proceedings
On 20 January 2006 and 14 April 2006 the Pension Fund filed a compensation claim against the first and second applicants, respectively, seeking the repayment of the pensions they had received between 1 January 2004 and 1 May 2005.
On 2 March 2006 the first applicant filed, inter alia, a counterclaim seeking the payment of the pension as of 1 May 2005 onwards. These proceedings would appear to be still pending.
On 17 March 2007 the second applicant filed a counterclaim seeking the payment of the pension for the period between 1 May 2005 and 17 March 2007.
On 30 October 2007 the Court of First Instance (Osnovni sud) in Podgorica ruled against the second applicant, which decision was upheld by the High Court (Viši sud) in Podgorica on 6 February 2009.
On 11 March 2010 the Constitutional Court dismissed the second applicant’s constitutional appeal lodged in this regard.
3. Other relevant facts
On 22 October 2006 the first applicant sought that the payment of his pension be resumed as his rights and duties as a legal practitioner were frozen on account of his health for a two-year period.
By 13 February 2009 this request was dismissed by the Pension Fund, the Ministry of Health, Labour and Social Welfare, the Administrative Court and the Supreme Court. It would appear that the first applicant did not file a constitutional appeal in this regard.
B. Relevant domestic law and practice
1. Constitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro - OGM - no. 1/07)
Article 149 of the Constitution provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.
The Constitution entered into force on 22 October 2007.
2. Montenegro Constitutional Court Act (Zakon o Ustavnom sudu Crne Gore; published in OGM no. 64/08)
Section 48 provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies have been exhausted.
Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision.
Section 93 provides, inter alia, that a constitutional appeal is allowed against individual decisions rendered after the Constitution had entered into force.
This Act entered into force in November 2008.
3. Other relevant provisions
For other relevant domestic law see Lakićević and Others v. Montenegro and Serbia, nos. 27458/06, 37205/06, 37207/06 and 33604/07, §§ 23-28, 13 December 2011.
COMPLAINTS
The applicants, primarily, complain about the suspension of their pensions. The first applicant relies on Article 1 of Protocol No. 1 to the Convention in this regard.
Both applicants also complain, under Articles 6 and 13 of the Convention, about the impartiality of the domestic courts and their interpretation of the domestic legislation, as well as about a lack of an effective domestic remedy in this respect.
QUESTIONS
1. Has the second applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, were an appeal to the Montenegrin Constitutional Court and the civil proceedings effective remedies in respect of the applicants’ complaints? Given the contradiction between the relevant domestic legislation and the case-law (section 93 of the Constitutional Court Act, on the one hand, and the Constitutional Court’s decision on the merits against the decision of the Supreme Court of 13 March 2007, on the other hand), was a constitutional appeal an available and effective domestic remedy also in respect of the decisions rendered before the Constitution entered into force? The Government are invited to submit any relevant decisions rendered in this regard.
2. Has there been a violation of Article 1 of Protocol No. 1 to the Convention? In particular, has there been a breach of this provision in that the applicants have never been compensated for the suspension of their pension rights (see Lakićević and Others v. Montenegro and Serbia, nos. 27458/06, 37205/06, 37207/06 and 33604/07, 13 December 2011)?
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