Resolution CM/ResDH(2013)91

Lakićević and others against Montenegro and Serbia

Execution of the judgment of the European Court of Human Rights

(Applications No. 27458/06, 37207/06, 37205/06, and 33604/07, judgment of 13/12/2011, final on 13/03/2012)

(Adopted by the Committee of Ministers on 29 May 2013 at the 1171st meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established in respect of Montenegro; [1]

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD ( 2013)106 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case; and

DECIDES to close the examination thereof.

Action report

Lakićević and others v. Montenegro and Serbia

Applications No. 27458/06, 37207/06, 37205/06, 33604/07

judgment of 13 December 2011, final on 13 March 2012

I CASE DESCRIPTION

This case concerns the violation of the applicants ’ right to the peaceful enjoyment of their property on account of the fact that their pensions were suspended because they reopened their legal practices on a part-time basis (violation of Article 1 Protocol No. 1).

II INDIVIDUAL MEASURES

The European Court awarded the applicants the just satisfaction in respect of both pecuniary and non ‑ pecuniary damage sustained. The applicants claimed sums in respect of pecuniary damage on account of suspended pensions or pensions reimbursed to the Pension Fund. However, the European Court did not award them the full amounts claimed “because reasonable and commensurate reduction in their entitlement could have been compatible with their Convention rights” (§ 80).

The amendments introduced to the Pension and Disability Insurance Act (Official Gazette of Montenegro No. 79/08) in 2008, made it possible for the applicants to receive their pensions regularly and in full amounts and to continue working as attorneys at the same time on a part-time basis. The payment of pensions has been therefore resumed in respect of all the applicants from January 2009.

The applicants thus now enjoy a wider scope of rights than afforded by the European Court in this judgment. It is recalled that the European Court stated that the reasonable and commensurate reduction of the applicants ’ pensions rather than the total suspension of their pension entitlements under the circumstances could be considered justified (see §§ 72 and 80).

In view of these facts, no other individual measure is required.

III GENERAL MEASURES

Legislative measures

The violation found in this case stems from the inadequate legal provisions, in particular from Section 112 paragraph 1 of the Pension and Disability Insurance Act (Official Gazette of the Republic of Montenegro No. 54/03). Section 112 paragraph 1 of this law provided that a person ’ s pension shall be suspended should he or she resume working or establish a private practice, for as long as this activity continues (§23).

As indicated by the European Court, the foregoing provision was repealed in 2008 when the amendments were introduced to the Pension and Disability Insurance Act (Official Gazette of Montenegro 79/08) (see §26).

Pursuant to the applicable legislation currently in force (Article 6 § 1 of the Law on Amendments to the Law on Pension and Disability Insurance) once pension entitlements had been acquired they could not be repealed or restricted by subsequent measures, in particular on the basis of resumed professional activities. This means that any similar violation is prevented.

In line with the legislation mentioned above, attorneys-at-law who acquired pension entitlements and continue working part-time receive full amount of their pensions. The current legislation therefore grants to these individuals wider rights than those afforded by the European Court of Human Rights in this case. The European Court stated, in particular, that the reasonable and commensurate reduction of the applicants ’ pensions rather than the total suspension of their entitlements or affording them a transitional period to adjust themselves to the new scheme could be justified (see §§ 72 and 80).

Change of the administrative practice and court case law

Following to the amendments to the Pension and Disability Insurance Act introduced in 2008, the administrative practice of the relevant authorities, in particular the Pension and Disability Insurance Fund, as the first instance body, the Ministry of Labour and Social Welfare, as the second instance body, in administrative proceedings concerning the pension entitlements, as well as the case law of Montenegrin courts has changed. Their decisions are now fully in compliance with the amended Pension and Disability Insurance Act, which now allows receiving of the full amount of pensions and simultaneous working part-time as an attorney-at-law in private practice.

Publication and dissemination

The European Court ’ s judgment was translated and published in the Official Gazette of Montenegro No. 17/2012 on 27 March 2012 and on the website of the Supreme Court of Montenegro.

IV JUST SATISFACTION

The amounts awarded to the applicants in respect of pecuniary and non-pecuniary damages as well as for the costs and expenses have been paid within the deadline set by the European Court.

V CONCLUSIONS OF THE RESPONDENT STATE

In view of the above facts, the Government of Montenegro considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention in this case, that these measures will prevent similar violations and that Montenegro has thus complied with its obligation under Article 46, paragraph 1 of the Convention. It is therefore proposed to the Committee of Ministers to adopt a final resolution closing the supervision of execution of this case.

Representative of Montenegro before the European Court of Human Rights

Zoran Pažin

[1] Case against Serbia and Montenegro but the European Court found inadmissible the complaints against Serbia.