Communicated on 9 November 2020
Published on 30 November 2020
SECOND SECTION
Application no. 54805/15
Nikola ŽEGARAC against Serbia
and 10 other applications
(see list appended)
SUBJECT MATTER OF THE CASE
The present applications primarily concern the temporary reduction of the applicants’ old-age pensions which was introduced as part of general austerity measures to remedy the acute budgetary crisis by the Act on Temporary Regulation of the Payment of Pensions (hereinafter “the Act”; Zakon o privremenom uredjenju nacina isplate penzija, published in the Official Gazette no. 116/14 of 27 October 2014 and entered into force the following day). Considering that sustainability of the pension system was threatened, the Act stipulated: (a) that the pensions below 25,000 dinars (“RSD”, around 200 euros) had been exempted from the reduction; (b) those between RSD 25,000 and 40,000 were reduced by a certain percentage of the part higher than RSD 25,000, and (c) those above RSD 40,000 were reduced by a higher percentage. The Act was directly applicable and the applicants were not receiving the individual decisions on the reduced pensions.
The applicants lodged applications with the Constitutional Court for the institution of proceedings regarding the assessment of the “constitutionality” and/or “legality” (inicijativa za pokretanje postupka za ocenu ustavnosti i zakonitosti) of the Act in question and its compatibility with ratified international treaties, as well for the suspension of its enforcement. On 23 September 2015 the Constitutional Court dismissed the applicants’ and other individuals’ applications and refused to open the formal proceedings (for the decision and dissenting opinions, see Official Gazette 88/2015 of 23 September 2015). Certain applicants in the present cases also pursued different legal avenues to seek review of the adverse impact of the Act on their pensions recognised by the State’s Pension Fund, such as civil or administrative claims and/or constitutional appeals, but all were ultimately unsuccessful. In the meantime, the Act was repealed and replaced by the new Pensions and Disability Insurance Act which came into force on 1 December 2018.
All applicants complain under Article 1 of Protocol No. 1 to the Convention that: (a) the reduction resulting from the Act itself amounted to a violation of their property rights, referring to “acquired” rights; (b) the Act ran counter to fundamental constitutional principles, international treaties and the basic Pensions and Disability Insurance Act; (c) temporal limitation was not set at the time of its enactment, while the Act was announced as temporary legislation; and (d) the calculations resulting from the law were arbitrary and devoid of any economic factors.
Relying on Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, and/or Article 1 of Protocol No. 12, the second, third, fourth, fifth and eleventh applicants complain about their discriminatory treatment in comparison to other pensioners to whom decrease of the pension annuities did not apply or applied to a lesser extent.
The first, eight, ninth and eleventh applicants lastly complain under Article 13 that, as a result of the direct application of the Act and the absence of individual decisions on the reduced pensions, they were prevented from asserting their claims before domestic administrative authorities and/or civil courts.
QUESTIONS TO THE PARTIES
As regards all applicants
1. Have the applicants exhausted properly all effective domestic remedies, as required by Article 35 § 1 of the Convention (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 75, 25 March 2014; and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 115-16, ECHR 2015)? In this respect, the parties are requested to provide documentary evidence and jurisprudence in support of their answers.
2. Has there been an interference with the applicants’ peaceful enjoyment of possessions by the enactment and direct application of the Act, within the meaning of Article 1 of Protocol No. 1? If affirmative, have the applicants been deprived, between 28 October 2014 and 1 December 2018, of their “possessions” in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No.o1 (see, for example, Koufaki and Adedy v. Greece (dec.), nos.o57665/12 and 57657/12, 7 May 2013, §§ 37 and 39; Da Conceição Mateus and Santos Januário v. Portugal (dec.), nos. 62235/12 and 57725/12, 8 October 2013, §o22; Da Silva Carvalho Rico v. Portugal (dec.), nos. 13341/14, 1oSeptember 2015, § 37; Valkov and Others v. Bulgaria, nos. 2033/04 and 8oothers, §§ 82-98, 25 October 2011, and Yavaş and Others v. Turkey, no. o36366/06, § 39-51, 5 March 2019? In particular, did that deprivation impose an excessive individual burden on the applicant (see, for example, Lakićević and Others v. Montenegro and Serbia, nos. 27458/06, 37205/06, 37207/06 and 33604/07, § 62, 13 December 2011)?
The Government are invited to provide information on the necessity to impose the measures in question, the savings affected as a result of this temporary reduction of pensions and surplus in the State budget, if any, between 2014 and 2018 which led to replacement of the impugned Act.
As regards the second, third, fourth, fifth and eleventh applicants (appl. nos. 56814/15, 7204/16, 7697/16, 7705/16 and 39151/20)
3. Have the applicants suffered discrimination in the enjoyment of their property rights, contrary to Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, and/or Article 1 of Protocol No. 12, as relevant (see Appendix), as a result of having been treated differently from certain other pensioners who received the full amount of their pensions or a larger part thereof (see Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, §§ 107-114, 25 October 2011, and Carson and Others v. the United Kingdom [GC], no. 42184/05, § 70, ECHR 2010)?
As regards the first, eight, nineth and eleventh applicants (appl. nos. 54805/15, 20743/16, 21856/16 and 39151/20)
4. 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?
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
Complaints
1
54805/15
Žegarac v. Serbia
21/10/2015
Nikola ŽEGARAC
1956
Belgrade
Serbian
Article 13
Article 14
Article 1 of Protocol No. 1
2
56814/15
Ugrin v. Serbia
04/12/2015
Srećko UGRIN
1937
Belgrade
Serbian
Article 14
Article 1 of Protocol No. 1
3
7204/16
Jovanović v. Serbia
25/01/2016
Milica JOVANOVIĆ
1946
Belgrade
Serbian
Article 14
Article 1 of Protocol No. 1
Article 1 of Protocol No. 12
4
7697/16
Popović v. Serbia
29/01/2016
Vesna POPOVIĆ
1946
Belgrade
Serbian
Article 14
Article 1 of Protocol No. 1
Article 1 of Protocol No. 12
5
7705/16
Popovic v. Serbia
29/01/2016
Branimir POPOVIC
1933
Belgrade
Serbian
Article 14
Article 1 of Protocol No. 1
Article 1 of Protocol No. 12
6
10314/16
Nikolić v. Serbia
11/02/2016
Miroslav NIKOLIĆ
1959
Zavlaka
Serbian
Article 1 of Protocol No. 1
7
19130/16
Rajčić v. Serbia
01/04/2016
Živorad RAJČIĆ
1950
Pozarevac
Serbian
Article 1 of Protocol No. 1
8
20743/16
Ćulić v. Serbia
09/04/2016
Milka ĆULIĆ
1946
Belgrade
Serbian
Article 13
Article 1 of Protocol No. 1
Article 1 of Protocol No. 12
9
21856/16
Bunjak v. Serbia
24/03/2016
Nada BUNJAK
1946
Belgrade
Serbian
Jovica KOSIĆ
Article 13
Article 1 of Protocol No. 1
10
26751/16
Sekulić v. Serbia
05/05/2016
Bratislav SEKULIĆ
1949
Belgrade
Serbian
Article 1 of Protocol No. 1
Article 1 of Protocol No. 12
11
39151/20
Veličković v. Serbia
11/08/2020
Tomislav VELIČKOVIĆ
1947
Belgrade
Serbian
Franc Branko BUTOLEN
Article 13
Article 14
Article 1 of Protocol No. 1
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