Communicated on 26 June 2014
THIRD SECTION
Application no. 15090/08
Zarifa SKENDERI against Serbia
and 4 other applications
(see list appended)
STATEMENT OF FACTS
1. Four applicants, Ms Zarifa Skenderi, Ms Hajra Memić, Ms Fikrije Selimi and Mr Sabit Šabani, maintain that they are nationals of Serbia, while the fifth applicant, Mr Halit Muhaxhiri, maintains that he is a national of Kosovo[1]. The applicants’ other personal details, the dates of introduction of their complaints before the Court, and information regarding their legal counsel, respectively, are all set out in the attached Appendix.
A. The relevant context
2. Following the North Atlantic Treaty Organisation’s (“NATO”) intervention, in June 1999 Kosovo was placed under international administration.
3. On 18 June 2004 the Serbian Ministry for Work, Employment and Social Policy, in response to a prior query, informed Kosovo’s Ombudsman that the pension system in Serbia was based on the concept of “ongoing financing”. Specifically, pensions were secured through current pension insurance contributions. It followed that since the Serbian authorities have been unable to collect any such contributions in Kosovo as of 1999, persons who had been paid their pensions by the Kosovo Branch Office of the Serbian Pensions and Disability Insurance Fund (“SPDIF”) could not expect to continue receiving them. The Ministry further noted the adoption of Regulation 2001/35 on pensions in Kosovo, providing for a separate pension system for persons living in the territory.
B. The specific circumstances of each applicant’s case
4. The facts, as submitted by the applicants respectively, may be summarised as follows.
1. As regards the first applicant (Ms Zarifa Skenderi, application no. 15090/08)
5. On 9 March 1999, following the death of her husband, the first applicant was granted a survivor’s pension by the SPDIF Branch Office in Kosovo.
6. On an unspecified date in 1999 the first applicant informed the SPDIF that she had moved from Kosovo to Novi Pazar, and sought payment of her pension at her new address.
7. Between 2001 and 2004 the first applicant repeatedly, albeit informally, complained to the SPDIF about having never received any of her pensions.
8. On 2 March 2006 the first applicant lodged a civil claim with the First Municipal Court in Belgrade, seeking payment of her accrued pensions plus statutory interest.
9. On 8 May 2006 the said court declined its territorial jurisdiction and forwarded the case file to the Second Municipal Court in Belgrade.
10. On 11 September 2006 the latter court suspended the proceedings. It explained that the international status of Kosovo was yet to be resolved and that in the meantime the Serbian authorities were unable to collect any pension insurance contributions in that territory. The status of Kosovo was therefore a preliminary question which had to be resolved before the first applicant’s claim could be adjudicated.
11. On 24 July 2007 the first applicant appealed this decision with the District Court in Belgrade.
12. On 25 January 2007 the first applicant lodged a criminal complaint with the Second Municipal Public Prosecutor’s Office in Belgrade, alleging that a number of unidentified officials employed with the SPDIF had acted criminally when they had effectively refused to resume the payment of her entitlements.
13. On 13 October 2008 the Second Municipal Court in Belgrade reaffirmed the suspension of the first applicant’s civil case pending the outcome of her complaints lodged with the SPDIF. It also reiterated that the status of Kosovo was a preliminary issue which had to be resolved first.
14. On 29 October 2008 the first applicant lodged an appeal against this decision, addressed to the District Court, and enquired about what had happened with her earlier appeal of 24 July 2007.
15. It would appear that the proceedings were subsequently resumed before the Second Municipal Court in Belgrade, but that on 15 December 2010 this court declined its competence ratione materiae and forwarded the case file to the newly established High Court in Belgrade.
2. As regards the second applicant (Ms Hajra Memić, application no. 27952/10)
16. On 3 June 1980, following the death of her husband, the second applicant was granted a survivor’s pension by the SPDIF Branch Office in Kosovo.
17. The second applicant regularly received her pensions until January 1999, when the monthly payments stopped without any explanation being provided by the SPDIF.
18. The second applicant thereafter repeatedly, albeit informally, sought that the payment of her pensions be resumed. On 6 March 2003 she ultimately lodged a formal request to this effect with the SPDIF.
19. On 21 September 2009 the SPDIF asked the second applicant to supplement her request with certain documents and the latter duly complied.
20. On 21 March 2005 and 1 June 2006 the second applicant again requested that the payment of her pensions be resumed.
21. On 13 June 2006 and 7 July 2006 the SPDIF again ordered the second applicant to supplement her request with documents which she had already provided.
22. On 27 December 2006 the second applicant brought a judicial review case (pokrenula upravni spor) before the District Court in Novi Pazar (see paragraph 54 below).
23. On 26 June 2007 the said court ruled in favour of the second applicant and ordered the SPDIF to decide on her request.
24. In the absence of such action on the part of the SPDIF, on 23 April 2009 the second applicant brought another judicial review case with the District Court in Novi Pazar, seeking, this time, that the court decide on the merits of her claim addressed to the SPDIF.
3. As regards the third applicant (Ms Fikrije Selimi, application no. 35372/10)
25. In 1988, following the death of her husband, the third applicant was granted a survivor’s pension by the SPDIF Branch Office in Belgrade.
26. At some point thereafter the third applicant moved from Belgrade to Kosovo.
27. The third applicant regularly received her pensions until January 1999, when the monthly payments stopped without any explanation being provided by the SPDIF.
28. The third applicant thereafter repeatedly, albeit informally, sought that the payment of her pensions be resumed. On 10 February 2006 she ultimately lodged a formal request to this effect with the SPDIF.
29. Having received no response and following an additional request which was also ignored, on 18 July 2006 the third applicant brought a judicial review case before the District Court in Belgrade.
30. On 21 July 2006 the said court declined its territorial jurisdiction and forwarded the case file to the District Court in Gnjilane (provisionally based in Vranje).
31. On 27 March 2008 and 12 May 2009 the third applicant requested information from the District Court in Gnjilane regarding the status of these proceedings.
4. As regards the fourth applicant (Mr Sabit Šabani, application no. 35374/10)
32. On 1 January 1997 the fourth applicant was granted a disability pension by the SPDIF Branch Office in Kosovo.
33. The fourth applicant regularly received his pensions until January 1999, when the monthly payments stopped without any explanation being provided by the SPDIF.
34. The fourth applicant thereafter repeatedly, albeit informally, sought that the payment of his pensions be resumed. On 23 March 2006 he ultimately lodged a formal request to this effect with the SPDIF.
35. Having received no response and following an additional request which was also ignored, on 15 August 2006 the fourth applicant brought a judicial review case before the District Court in Belgrade.
36. On 14 September 2006 the said court declined its territorial jurisdiction and forwarded the case file to the District Court in Gnjilane (provisionally based in Vranje).
37. On 27 March 2008 and 12 May 2009 the fourth applicant requested information from the District Court in Gnjilane regarding the status of these proceedings.
5. As regards the fifth applicant (Mr Halit Muhaxhiri, application no. 47575/12)
38. On 24 July 1991 the fifth applicant was granted an old-age pension by the SPDIF Branch Office in Kosovo.
39. The fifth applicant regularly received his pensions until March 1999, when the monthly payments stopped without any explanation being provided by the SPDIF.
40. The fifth applicant thereafter repeatedly, albeit informally, sought that the payment of his pensions be resumed. On 28 January 2008 he ultimately lodged a formal request to this effect with the SPDIF.
41. Having received no response, on 7 October 2008 the fifth applicant again addressed the same request to the SPDIF.
C. Relevant domestic law and practice
1. The Pensions and Disability Insurance Act (Zakon o penzijskom i invalidskom osiguranju; published in the Official Gazette of the Republic of Serbia – OG RS – nos. 34/03, 64/04, 84/04, 85/05, 101/05, 63/06, 5/09, 107/09, 30/10, 101/10, 93/12, 62/13 and 108/13)
42. Article 104 provides, inter alia, that administrative proceedings before the SPDIF may be reopened, at the request of the insured person or ex proprio motu, if new relevant facts or evidence become known or if in the original proceedings such facts or evidence were not presented.
43. Article 110 provides, inter alia, that one’s pension and disability rights shall be terminated if it transpires that one no longer meets the original statutory requirements. However, should an entitled pensioner secure an additional pension before another pension and disability insurance fund established by one of the other States formed in the territory of the former Yugoslavia, his or her pension paid by the SPDIF, unless stipulated otherwise by an international agreement, shall be reassessed (recalculated) based on the pensionable employment period (penzijski staž) already taken into account by the former.
44. Article 119 provides that when a pensioner is entitled to two or more pensions in the territory of the Republic of Serbia only one of those pensions may be paid, in accordance with the pensioner’s own preference.
45. Article 123 provides that pension instalments which have not been paid owing to circumstances caused by the pensioner can be sought only for the past twelve months as of when he or she lodged a request to this effect.
2. The Decisions of the SPDIF concerning jurisdictional issues adopted on 19 August 1999 and 22 March 2007, respectively (Odluka o privremenom načinu ostvarivanja prava iz penzijskog i invalidskog osiguranja osiguranika i lica sa područja AP Kosovo i Metohija od 19. avgusta 1999. i Odluka o privremenoj nadležnosti za ostvarivanje prava iz penzijskog i invalidskog osiguranja za osiguranike i lica sa područja AP Kosovo i Metohija od 22. marta 2007)
46. These decisions set out details concerning the procedural competence of various branches of the SPDIF as regards the entitlements of insured persons from Kosovo.
3. The Opinion of the Ministry for Social Affairs (Mišljenje Ministarstva za socijalna pitanja) no. 181-01-126/2003 of 7 March 2003, and the Opinion of the Ministry for Labour, Employment and Social Policy (Mišljenje Ministarstva rada, zapošljavanja i socijalne politike) no. 182-02-20/2004-07 of 18 June 2004
47. These Opinions state, inter alia, that the pension system in Serbia is based on the concept of “ongoing financing”. Specifically, pensions are secured through current pension insurance contributions. Since the Serbian authorities have been unable to collect any such contributions in Kosovo as of 1999, persons who have been granted SPDIF pensions in Kosovo cannot expect, for the time being, to continue receiving them. Further, it is noted that Regulation 2001/35 on pensions in Kosovo, adopted by the United Nations Interim Administration Mission (“UNMIK”), provides for a separate pension system for persons living in the territory (see paragraphs 58-61 below).
4. The Constitutional Court’s case-law
48. The Serbian Constitutional Court has consistently held that Opinions and Instructions issued by various Government ministries do not amount to legislation (ne predstavljaju propis ili opšti pravni akt), and are instead merely meant to facilitate the implementation thereof (see, for example, IU-293/2004 of 29 June 2006 and IUo-275/2009 of 19 November 2009).
5. The Opinion adopted by the Supreme Court’s Civil Division on 15 November 2005 (Pravno shvatanje Građanskog odeljenja Vrhovnog sud Srbije, sa obrazloženjem, utvrdjeno na sednici od 15. novembra 2005. godine, Bilten sudske prakse br. 3/05)
49. In response to the situation in Kosovo, this Opinion states, inter alia, that one’s recognised right to a pension may only be restricted on the basis of Article 110 of the Pensions and Disability Insurance Act (see paragraph 43 above). In view of Article 169 of the said Act, one’s recognised pension rights cannot either depend on whether or not current pension insurance contributions can be collected in a given territory.
50. The Opinion further explains that administrative proceedings (upravni postupak) and, if needed, judicial review proceedings (upravni spor) would be the appropriate avenue to challenge any restriction of one’s pension rights.
51. Lastly, the Opinion notes that the civil courts shall, in this context, only be competent to adjudicate cases involving claims of malfeasance (nezakonit i nepravilan rad) on the part of the SPDIF.
6. The General Administrative Proceedings Act (Zakon o opštem upravnom postupku; published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 33/97 and 31/01, as well as in OG RS no. 30/10)
52. Article 208 § 1 provides, inter alia, that in simple matters an administrative body shall be obliged to issue a decision within one month as of when the claimant had lodged his or her request. In all other cases, the administrative body shall render a decision within two months thereof.
53. Article 208 § 2 enables the claimant whose request has not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request has been denied. Where an appeal is not allowed, the claimant shall have the right to directly initiate an administrative dispute before the competent court of law.
7. The Administrative Disputes Act (Zakon o upravnim sporovima; published in OG FRY no. 46/96)
54. Articles 5 and 6 provide, inter alia, that judicial review proceedings may be brought against an administrative decision issued by a competent State body or public authority.
55. Article 24 provides that should a second instance administrative body fail to decide on an appeal filed more than 60 days earlier, and should it again fail to do so in another 7 days, upon receipt of the claimant’s repeated request to this effect, the latter may directly institute a judicial review suit, i.e. as if his or her appeal had been rejected.
56. Article 41 § 3 provides that the competent court may not only quash the impugned administrative act but may also rule on the merits of the plaintiff’s claim, should the facts of the case and the very nature of the dispute in question allow for this particular course of action.
8. The Constitution of the Republic of Serbia 2006 (Ustav Republike Srbije; published in OG RS no. 98/06)
57. Article 170 provides that a “constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed”.
D. Relevant law in Kosovo
1. Regulation 2001/35 on pensions in Kosovo and Regulation 2005/20 amending Regulation 2001/35, both regulations having been adopted by UNMIK
58. These regulations provide for a separate pension system whereby, inter alia, all persons “habitually residing” in Kosovo, aged 65 or above, shall have the right to a “basic pension”.
2. The Amendments and Additions Act to Regulations 2001/35 and 2005/20 adopted by the Kosovan Assembly
59. On 13 June 2008 the Kosovan Assembly adopted this Act which, essentially, endorsed the pension system as set up by the two Regulations cited above but transferred the functional competencies from UNMIK to the Kosovan authorities.
3. Administrative Instruction no. 11/07 of 6 November 2007 on the execution of the Government’s decision no. 13/277 of 31 October 2007
60. These regulations provide, inter alia, that the basic pension referred to in paragraph 58 above, in the amount of 40 euros (“EUR”) monthly, could be increased to EUR 75 monthly in respect of all pensioners habitually residing in Kosovo, aged 65 or above, who could prove that they had been paying pension insurance contributions to the SPDIF for a period of at least fifteen years and are not in receipt of another pension on the same basis.
4. Administrative Instruction no. 15/09 of July 2009 on the execution of the Government’s decision no. 2/51 of 23 January 2009
61. These regulations essentially affirm those described at paragraph 60 above, but raise the pensions in question from EUR 75 to EUR 80 monthly.
E. The Court’s position on the issue
62. On 17 April 2012, the Court, inter alia, unanimously: (a) held that there had been a violation Article 1 of Protocol No. 1; (b) ordered the respondent Government to pay the applicants, on account of the pecuniary damage suffered, their pensions due as of 1999 and 2000, respectively, together with statutory interest; and (c) under Article 46 of the Convention, held that the Government must, within six months from the date on which the judgment becomes final and in view of the large number of potential applicants, take all appropriate measures to ensure that the competent Serbian authorities implement the relevant laws in order to secure payment of the pensions and arrears in question. The Court, however, accepted that certain reasonable and speedy factual and/or administrative verification procedures may be necessary in this regard (Grudić v. Serbia, no. 31925/08, 17 April 2012).
63. On 24 September 2012 this judgment became final. The six months referred to under Article 46 were to expire on 24 March 2013. The Chamber, however, in the meantime granted the Government’s request and extended the said deadline until 24 September 2013.
F. Developments following the Grudić judgment
64. On 12 February 2013 the Government adopted an Action Plan in response to the Grudić judgment.
65. On 20 February 2013 a public announcement was posted on the SPDIF’s website. On the same day and, subsequently, on 25 February 2013 it was also published in Politika and Jedinstvo respectively, as two daily newspapers. The announcement informed Kosovan pensioners that all those whose SPDIF pensions had been suspended as of 9 June 1999 could lodge a request to have their payment resumed within a period of sixty days. The request, however, had to be supplemented with a decision issued by the SPDIF granting the pension in question, proof of identity, a “life certificate”, evidence that the claimant was not in receipt of another pension granted by the Kosovan authorities (see paragraphs 58-61 above), and proof that the pensioner concerned was a person insured by the SPDIF.
66. The Government have further consistently maintained that the relevant pension-related documentation had been destroyed during the NATO intervention, hence the need for its resubmission.
67. On 26 March 2013 the Working Group, a body set up by the Government, decided that all applicants who had submitted incomplete requests be invited, by means of an individual letter, to supplement their applications. As regard pensioners who had already lodged their requests before the publication of the announcement, such as the applicants in the present case, they would also be individually invited to submit, as needed, the missing documents notwithstanding the expiration of the original sixty-day deadline.
68. On an unspecified date thereafter, the Working group noted that it had encountered serious problems regarding postal deliveries in the territory of Kosovo.
69. On 1 April 2013 and 13 May 2013 the Government addressed UNMIK, seeking any and all available information and documentation related to the payment of Kosovan pensions.
70. In their statement of 19 November 2013, the Government noted that based on Articles 119 and 123 of the Pensions and Disability Insurance Act no pensioner already in receipt of a Kosovan pension would be entitled to an additional SPDIF pension at the same time, and, further, that even were the payment of a SPDIF pension had already been resumed this would only retroactively cover the past twelve months as of when the request to this effect had been lodged (see paragraphs 44 and 45 above). The Government also noted that pensioners could challenge any rejections of their requests for resumption of payment through an administrative dispute and/or before the civil courts, as well as, ultimately, bring their cases to the Constitutional Court.
71. On 22 November 2013 the Government noted that postal deliveries in Kosovo remained a major issue, and that on 22 October 2013 it had held a meeting with UNMIK in an attempt to resolve this problem, as well as the issue of the documentation related to the payment of Kosovan pensions raised earlier.
72. On 24 January 2014 UNMIK informed the Government that it was not able to “mediate” in respect of postal deliveries.
73. As of 21 February 2014, a total of 8,437 persons from Kosovo requested that the payment of their SPDIF pension be resumed. Of this number, 88 requests were granted, while 1,970 and 2,972 requests were rejected on their merits or as incomplete respectively. There are, hence, currently still 3,407 requests pending before the SPDIF.
74. On 24 October 2013 the Pensioners Union of Kosovo (“PUK”) maintained, inter alia, that there were 88,901 individual SPDIF pensions and other benefits that needed to be honoured by Serbia. All relevant information was in possession of the Kosovan Ministry for Labour and Social Welfare, but the Serbian authorities were unwilling to contact the said ministry for political reasons. The PUK further considered that copies of the relevant documentation also remained in possession of the Serbian Government since they had not been destroyed in the course of the NATO intervention. As regards the Kosovan pensions, the PUK argued that this was merely a form of social assistance. It could not, therefore, be used as an excuse by the Serbian authorities not to resume payment of the SPDIF pensions in question.
COMPLAINTS
75. The applicants refer to various provisions of the Convention as well as the Protocols thereto. In substance, however, they complain about not being paid their respective SPDIF pensions since 1999 and the ongoing absence of any effective Serbian remedies in this respect.
QUESTIONS TO THE PARTIES
1. Have the second, third, fourth and fifth applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, could an appeal provided for under Article 170 of the Serbian Constitution (ustavna žalba), in a case such as the said applicants’, be considered effective within the meaning of Article 35 § 1 of the Convention (see, mutatis mutandis, Vinčić and Others v. Serbia, no. 44698/06 and others, § 51, 1 December 2009; and Grudić v. Serbia, no. 31925/08, §§ 50-52, 17 April 2012)? The Government are invited to submit any and all Constitutional Court case-law in this respect.
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 respondent State has suspended the payment of the applicants’ pensions (Grudić, cited above, §§ 77-83)?
3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?
4. Have the Government complied with the Court’s instructions given in the Grudić judgment under Article 46 of the Convention, and, if so, how did this affect the applicants’ situation in the present cases (Grudić, cited above, §§ 98 and 99)?
Appendix
No.
App. nos.
Lodged on
Applicant’s name
Date of birth
Place of residence
Represented by
Practising in
15090/08
03/03/2008
Zarifa SKENDERI
06/11/1946
Novi Pazar
Đura STEFANOVIĆ
Prizren
27952/10
05/05/2010
Hajra MEMIĆ
10/07/1943
Tutin
Hasim KLIMENTA
Tutin
35372/10
04/05/2010
Fikrije SELIMI
07/07/1950
Gnjilane
Milorad BJEGOVIĆ
Belgrade
35374/10
04/05/2010
Sabit ŠABANI
07/04/1943
Gnjilane
Milorad BJEGOVIĆ
Belgrade
47575/12
18/07/2012
Halit MUHAXHIRI
01/04/1942
Jagodina
_
[1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.
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