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ŽEGARAC v. SERBIA and 10 other applications

Doc ref: 54805/15;56814/15;7204/16;7697/16;7705/16;10314/16;19130/16;20743/16;21856/16;26751/16;39151/20 • ECHR ID: 001-206538

Document date: November 9, 2020

Inbound citations: 3
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Cited paragraphs: 1
•
Outbound citations: 10

ŽEGARAC v. SERBIA and 10 other applications

Doc ref: 54805/15;56814/15;7204/16;7697/16;7705/16;10314/16;19130/16;20743/16;21856/16;26751/16;39151/20 • ECHR ID: 001-206538

Document date: November 9, 2020

Cited paragraphs only

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, nin th 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 Articl e 1 of Protocol No. o 1 (see, for example, Koufaki and Adedy v. Greece ( dec. ), nos. o 57665/12 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, § o 22; Da Silva Carvalho Rico v. Portugal ( dec. ), nos. 13341/14, 1 o September 2015, § 37; Valkov and Others v. Bulgaria , nos. 2033/04 and 8 o others, §§ 82-98, 25 October 2011, and Yavaş and Others v. Turkey , no. o 36366/06, § 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 Protoco l 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

54805/15

Žegarac v. Serbia

21/10/2015

Nikola ŽEGARAC

1956Belgrade

Serbian

Article 13

Article 14

Article 1 of Protocol No. 1

56814/15

Ugrin v. Serbia

04/12/2015

Srećko UGRIN

1937Belgrade

Serbian

Article 14

Article 1 of Protocol No. 1

7204/16

Jovanović v. Serbia

25/01/2016

Milica JOVANOVIĆ

1946Belgrade

Serbian

Article 14

Article 1 of Protocol No. 1

Article 1 of Protocol No. 12

7697/16

Popović v. Serbia

29/01/2016

Vesna POPOVIĆ

1946Belgrade

Serbian

Article 14

Article 1 of Protocol No. 1

Article 1 of Protocol No. 12

7705/16

Popovic v. Serbia

29/01/2016

Branimir POPOVIC

1933Belgrade

Serbian

Article 14

Article 1 of Protocol No. 1

Article 1 of Protocol No. 12

10314/16

Nikolić v. Serbia

11/02/2016

Miroslav NIKOLIĆ

1959Zavlaka

Serbian

Article 1 of Protocol No. 1

19130/16

Rajčić v. Serbia

01/04/2016

Živorad RAJČIĆ

1950Pozarevac

Serbian

Article 1 of Protocol No. 1

20743/16

Ćulić v. Serbia

09/04/2016

Milka ĆULIĆ

1946Belgrade

Serbian

Article 13

Article 1 of Protocol No. 1

Article 1 of Protocol No. 12

21856/16

Bunjak v. Serbia

24/03/2016

Nada BUNJAK

1946Belgrade

Serbian

Jovica KOSIĆ

Article 13

Article 1 of Protocol No. 1

26751/16

Sekulić v. Serbia

05/05/2016

Bratislav SEKULIĆ

1949Belgrade

Serbian

Article 1 of Protocol No. 1

Article 1 of Protocol No. 12

39151/20

Veličković v. Serbia

11/08/2020

Tomislav VELIČKOVIĆ

1947Belgrade

Serbian

Franc Branko BUTOLEN

Article 13

Article 14

Article 1 of Protocol No. 1

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