SECOND SECTION

Application no . 75915/12 Saša POPOVIĆ against Serbia and 6 other applications (see list appended)

STATEMENT OF FACTS

1 . The applicants are Serbian nationals and residents of the town of Majdanpek (for additional personal details see the attached Annex). They are represented before the Court by Mr D. Vasiljević, a lawyer practising in the same town.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicants, may be summarised as follows.

1. The imposition and collection of a specific local tax

3 . The assembly of a Majdanpek local community ( Gradska mesna zajednica Majdanpek ) [1] had referred to its residents a proposal to self-impose an additional local tax (“ samodoprinos ”, hereinafter “the SILT”) to fund certain services provided by that local community.

4 . As a result of a ballot held between 10 June 2006 and 10 July 2006 at the level of the Majdanpek local community, t he proposal was accepted .

5 . O n 11 July 2006 the Council of the Majdanpek local community (hereinafter “the Council”) enacted an Ordinance, introducing the pecuniary SILT and elaborating on its purpose, administration and levy . [2] The Ordinance, inter alia ,

(a) provided that the SILT had been designed to fund the building or maintenance of twelve specified utilities, and sports, children ’ s, health and cultural facilities (Article 2);

(b) limited, temporarily, the local community ’ s power to levy the SILT to 5 years (Article 3), and/or, nominally, until the necessary resources for funding the designated projects had been collected (Article 4.1);

(c) identified the exact amounts to be allocated per year, and entrusted the Council with adopting annual plans in that respect (Articles 4.2 and 5). It also designated the local community ’ s finance departments to conduct finance-administrative activities and to track income and expenditure in accordance with the law (Article 12);

(d) stipulated who was to pay the SILT (it was imposed on citizens with active voting rights and residence or those owning residential property in certain circumstances), the basis (taxable incomes and land values), the rate (2%), and the method of its collection;

(e) specified the local community ’ s current account X, run by the Majdanpek field office of the Zajecar Public Revenue Office ( Uprava za javna plaćanja Zaječar, filijala Majdanpek ), for the collection of the SILT (Article 15);

(f) provided that the legislation governing tax proceedings and tax administration should be applicable, as relevant, on issues such as the manner of tax assessment, deadlines for payments, calculation of interest and statutes of limitation, and other issues not specifically covered by the relevant Law; and

(g) stated that if the targeted amount was collected before the expiry of the time allotted for levying the SILT, the levy process should be terminated and overpayments be repaid to the intermediary institutions (payers ’ employers, etc.) in order to be returned to the SILT payers.

6 . It would appear that on an unspecified date the Finance Department of the Majdanpek municipality ( Opštinska uprava opštine Majdanpek-odeljenje za budžet, finansije i trezor ) informed all of its local communities, by an instruction of 17 December 2007, [3] that all public revenues should be paid into current account Y. It would appear that the Majdanpek local community did not inform the applicants ’ employers of this decision.

7 . The applicants ’ liability to pay the SILT was discharged by their employers, who withheld their contributions on a “pay-as-you-earn” basis in the form of a periodic monthly deduction from their taxable wages . It would appear that various employers, including those of the applicants, were paying all or most of the applicants ’ contributions into account X.

2. Termination of imposition of the SILT and the related tax refund proceedings

8 . On 6 October 2010 a non-governmental organisation appears to have informed the officials of the Majdanpek Municipality that, in analysing the annual finance reports of the Majdanpek local community, it had discovered that by June 2010 almost double the targeted amount had already been collected.

9 . Following pressure by the inhabitants of Majdanpek, on 23 March 2011 the Council formed a Commission to establish the total amount collected in respect of the SILT (hereinafter “the Commission”).

10 . On 6 April 2011 levying of the SILT was terminated.

11 . On the basis of the data provided by the relevant finance departments of the Majdanpek local community and Majdanpek municipality, on 16 May 2011 the Commission found that: (a) the targeted amount had been collected by the end of February 2009 and, thereafter, a further RSD 33,410,126.99 (EUR 335,000 on that date) had been collected unlawfully and without cause; (b) each payer was entitled to claim a refund of the amounts deducted from his or her inco me after the said date; and (c) RSD 3,422,524.32 remained in the current accounts into which the SILT had been paid.

12 . It would appear that on an unspecified date in 2011 the Majdanpek municipality announced that it would refund overpayments to SILT payers once they had filed claims in that regard.

13 . The first four applicants and twenty-four other SILT payers filed a claim with the Finance Department of the Majdanpek municipality, requesting the restitution of overpayments made after 1 March 2009.

14 . Between 30 July 2011 and 30 January 2012 the Finance Department ruled on their claims as follows.

15 . In two cases, on 30 July 2011 and 7 May 2012 respectively, the Finance Department refunded the claimants, without making reference to any current account.

16 . Between 8 August 2011 and 30 January 2012 the Finance Department, referring to its instruction of 17 December 2007 (see paragraph 6 above) agreed to refund to the other claimants, including the first four applicants, only the overpaid SIL T which their employers had paid in to account Y and rejected the remainder of the ir claims. In so doing, it instructed the first four applicants and another two claimants that they could appeal to the Nis Regional Centre of the Ministry of Finance ’ s Tax and Revenue Office, and instructed the remaining claimants to appeal to the Majdanpek Municipality ’ s Executive Council ( Op š tinsko ve ć e Op š tine Majdanpek ). On 21 February 2012 the latter authority rejected all appeals , in a one-sentence decision, on the same ground as that used by the Finance Department.

17 . It would appear that the applicants did not pursue the indicated avenue further.

18 . The remaining three applicants and the majority of SILT payers did not institute tax proceedings.

3. The relevant civil proceedings

19 . Between 15 July and 2 November 2011, all of the applicants filed separate civil claims for unjust enrichment ( tužba zbog sticanja bez osnova ) with the Negotin Court of First Instance-Majdanpek Unit ( Osnovni sud u Negotinu – Sudska jedinica Majdanpek; hereinafter “the Court of First Instance”), seeking a refund of the overpaid SILT jointly from the Majdanpek Municipality and the Majdanpek local community, together with the statutory interest accrued. It would appear that several hundred SILT payers in Majdanpek pursued the same avenue.

20 . Between 1 December 2011 and 9 February 2012 the Court of First Instance stated that it did not have competence ratione materiae to hear the applicants ’ cases. In its reasoning, the court considered the SILT as a source of a municipality ’ s primary income ( izvorni prihod opštine ) and stated that the Tax Proceedings and Tax Administration Act should accordingly be applicable to various matters not specifically covered by the Local Government Act. Further, the former Act (with the most recent amendments in 2010), which defined tax matters as public-law matters between the Tax and Revenue Office on the one hand, and natural and legal persons on the other, empowered the latter to request a refund of overpaid or erroneously levied tax and ancillary contributions in tax proceedings. Therefore, and also given that the Majdanpek local community had never adopted a decision on revoking the SILT, the present disputes could not be characterised as civil-law disputes within the competence ratione materiae of civil courts.

21 . Between 26 January 2012 and 9 February 2012 the Negotin High Court upheld the first-instance decisions on appeal.

4. Other civil suits

22 . In dozens of other judgments delivered between 2010 and 2012, the Prijepolje Court of First Instance and Užice High Court accepted jurisdiction and ruled in favour of other plaintiffs, notwithstanding the fact that their claims were based on very similar facts (unlawful SILT levying) and concerned unjust enrichment, and that they had not pursued tax-refund proceedings (administrative remedies) (see, for example, the decisions of the Užice High Court Gž. 1675/10 of 13 December 2010, Gž. 65/11 of 19 January 2011; 172/11 of 4 February 2011, and 1234/11 of 15 July 2011). The Constitutional Court had previously ruled unconstitutional the relevant ordinance adopted by the Prijepolje local community, as it had, inter alia , retroactively imposed the levying of the SILT.

5. The constitutional avenue

23 . In 2012, a constitutional appeal was filed with the Constitutional Court on behalf of each applicant.

24 . In his constitutional complaint of 23 March 2012, the first applicant relied on various Articles of the Constitution (see B.1 in the “Relevant domestic law” below). He complained, in particular, that the municipal bodies had acted unlawfully, in an untimely manner and in breach of the rule of law and property rights when collecting the SILT and, thereafter, when ruling on the applicant ’ s and others ’ claims. He further claimed that the summary dismissal of his civil claim, based on the “erroneous application of the relevant domestic legislation”, had arbitrarily deprived him of judicial protection. Lastly, the first applicant maintained that the divergent case-law of the competent courts in his case and of the domestic courts which had accepted judicial jurisdiction ratione materiae on similar facts and the same legal issue had amounted to legal uncertainty, unequal protection of citizens before the law and discrimination against him, and that the final outcome of the civil proceedings deprived him of the expected refunds.

25 . On 11 September 2012 the Constitutional Court dismissed the first applicant ’ s constitutional appeal on various procedural grounds.

26 . The Constitutional Court declared the first applicant ’ s complaints that he had been deprived of access to a court to be manifestly ill-founded. Specifically, the dispute concerning the rights asserted in the civil proceedings – which arose in the context of a public-law matter rather than a private contractual obligation - was not a civil matter, but a “tax-administrative” one, to be decided by the tax authorities.

27 . It further dismissed the complaints about the alleged violations of the first applicant ’ s rights to property and to be awarded damages, as it could not identify any link between the applicant ’ s allegations and the contested judicial decisions. Nevertheless, the Constitutional Court pursued its analysis, noting that the ground on which the Majdanpek municipality refused to refund most of the applicant ’ s claim had been legally irrelevant. In particular, the applicant and other SILT payers should not have suffered harm on account of the Majdanpek local community ’ s failure to amend its Ordinance and inform the tax intermediaries in a legally valid manner of the change in the relevant current account. The Constitutional Court concluded that the applicant and his employer were entitled to request the restitution of overpayments from the Majdanpek local community in tax proceedings, within the time-limits prescribed by law, given that the overpayments had been paid into its current account.

28 . The Constitutional Court further summarily dismissed the applicant ’ s complaint about unequal protection of rights, stating that the applicant ’ s general allegations ( paušalno izneti navodi ) “that the Prijepolje Court of First Instance and Užice High Court had characterised the impugned issue as unjust enrichment in numerous cases” did not represent “a constitutional reason to claim a breach of the right to equal protection of rights”.

29 . Lastly, the Constitutional Court explained that the principles set out in Articles 18-21 could be breached only if a violation of other substantive Constitution rights had been found and that therefore there was no constitutional reason to examine the alleged violations of those principles.

30 . The other six applicants lodged the same or very similar constitutional appeals as the first applicant. The Constitutional Court ’ s decisions in their cases were summarised versions of its lead decision in the first applicant ’ s case.

B. Relevant domestic law and practice

1. The Constitution of the Republic of Serbia (Ustav Republike Srbije; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06 )

31 . The relevant provisions of the Constitution are as follows: Article 18 (direct implementation of guaranteed rights), Article 19 (purpose of constitutional guarantees), Article 20 §§ 1 and 3 (restriction of human rights), Article 21 §§ 1, 2 and 3 (equality and prohibition of discrimination), Article 22 § 1 (right of (judicial) protection of human rights), Article 32 § 1 (right to a fair trial), Article 35 § 2 (right to be awarded damages) and Article 58 §§ 1 and 4 (right to peaceful enjoyment of property).

2. Obligations Act (Zakon o obligacionim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85, 45/89, 57/89 and the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – no. 31/93)

32 . The provisions concerning unjust enrichment ( sticanje bez osnova; enrichment without cause; condictio sine causa ) are to be found in Articles 210-219.

33 . Under the general rule set out in Article 210, when a part of the property of one person passes, by any means, into the property of another person, and that transfer has no basis in a legal transaction or statute [that is, it is without cause], the beneficiary is required to return that property. If restitution is not possible, he or she is required to provide compensation for the value of the benefit received. The obligation to return the property or provide compensation for its value arises even when something is received on account of a cause which did not come into existence or which subsequently ceased to exist.

34 . As regards the extent of restitution, pursuant to Article 214, the beneficiary is also required to return any profit or benefit accrued and to pay default interest, and to do so, where he or she was acting in bad faith, from the day of the enrichment, or otherwise from the day on which the request [for the return of the property] was made.

3. Civil Law Lexicon

35 . One of the most common types of unjust enrichment is the case where the plaintiff has paid to the defendant what he or she was not bound to pay, either because he or she mistakenly believed that it should have been paid, or because he or she knew that nothing was due, but did pay to avoid adverse consequences – such as responsibility for non-payment of tax, even when the tax had been wrongfully assessed. The person who made such a payment may recover it by filing a civil action ( condictio indebiti ) ( Leksikon građanskog prava , A. Jak šić, Nomos Beograd , 1996 , p. 484 ).

4. The Administrative Disputes Act (Zakon o upravnim sporovima; published in OG FRY no. 46/96 )

36 . Articles 5 and 6 of the Act provide, inter alia , that judicial review proceedings may be brought against an administrative decision issued by a competent State body or public authority.

37 . Article 24 provides that should a second-instance administrative body fail to decide on an appeal filed more than 60 days previously, and should it again fail to do so within a further 7 days after receipt of the plaintiff ’ s repeated request to this effect, the latter may directly bring proceedings for judicial review, i.e. as if his or her appeal had been rejected.

38 . 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.

5. Self-imposed local tax (“ samodoprinos ”)

39 . The provisions regarding the legal nature and administration of local taxation, including the self-imposed local tax, are set out in various legal acts, which have been amended or repealed on numerous occasions over the years: the Local Government Act ( Zakon o lokalnoj samoupravi , published in OG RS nos. 9/02, 33/04 and 135/04), the Local Government Finance Act ( Zakon o finansiranju lokalne samouprave, published in OG RS, nos. 62/06 and 47/11, which came into force on 1 January 2007 and repealed the Local Government Act), the Budget System Act 2002 ( Zakon o budžetskom sistemu , published in OG RS nos. 9/02 ... 86/06) and the Budget System Act 2009 ( Zakon o budžetskom sistemu , published in OG RS no. 54/09), the Act on Public Income and Public Expenditure ( Zakon o javnim prihodima i javnim rashodima , published in OG RS nos. 76/91, 41/92, 18/93, 22/93, 37/93, 67/93, 45/94, 42/98, 54/99, 22/01, 9/02, 87/02, 33/04 and 135/04) and the Tax Proceedings and Tax Administration Act ( Zakon o poreskom postupku i poreskoj administraciji , published in OG RS nos. 80/02, 84/02, 23/03, 70/03, 55/04, 61/05, 85/05, 62/06, 63/06 and 2/2012).

40 . Self-imposed local taxes, which were initially levied at federal level, have been redefined and handed over to the local government level. All citizens in a municipality/local community are entitled to vote on whether or not to create additional revenue for specific investments (e.g. to fund the building or maintenance of utility services or buildings of value for the community). Where a majority of citizens vote in favour of imposing such a local tax, c ontributions become mandatory and are required from all citizens with taxable incomes, including those who voted against it or did not vote at all. The competent local authorities, rather than the Central Tax and Revenue Agency, subsequently define the procedures for administering and collecting contributions and monitoring the procedure .

COMPLAINTS

Under Articles 6, 13 and 14 of the Convention, and Articles 1 of Protocols Nos. 1 and 12, respectively, the applicants, in substance: (a) contest the lawfulness of the levying of their contributions after the necessary funds had been already collected, and claim that the inappropriate administration of the levy of local tax and, in particular, the fact that it had been impossible to obtain refunds of overpayments, amounted to a violation of their property rights; (b) complain that they were unlawfully and unforeseeably prevented from asserting their claims before a civil court and, in that regard, that they were deprived of their overpayments; (c) further complain that the dismissal of their claims was based on the “erroneous interpretation and application of the relevant domestic legislation”, in view of the simultaneous recognition of judicial competence by other appellate courts when ruling on similar claims lodged by persons paying local tax in other municipalities; and, lastly (d) complain that they were discriminated against, since their cases were decided differently from other similar claims.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention ( see Akdivar and Others v. Turkey , 16 September 1996, § 69, Reports of Judgments and Decisions 1996 ‑ IV) ? In particular, could the administrative and judicial review proceedings at the applicants ’ disposal, and in a case such as theirs, be deemed effective within the meaning of this provision? In addition, what is the scope of review of the Administrative Court in tax reclaim-related proceedings? Please provide any relevant jurisprudence in these regards.

2. Was Article 6 § 1 of the Convention under its civil head applicable to the civil proceedings for unjust enrichment in the present case?

3. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, h ave the applicants been denied, in breach of Article 6 § 1 of the Convention, the “right to a court” in the determination of their civil rights and obligations, in view of the civil courts ’ refusal to hear their cases ? In addition, in the light of the applicants ’ allegations that the domestic courts applied a different approach to other claims similar to the applicants ’ , was the principle of legal certainty implicit in this provision complied with (see, mutatis mutandis , Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05 , §§ 49-58 , 20 October 2011 ; Vinčić and Others v. Serbia , nos. 44698/06 et. seq . , 1 December 2009; and Živić v. Serbia , no. 37204/08 , § 47, 13 September 2011, with further references )?

Please supply relevant domestic case-law and inform the Court whether the domestic law provided for a mechanism capable of removing the alleged inconsistency, if any, as well as whether the Serbian courts have taken the steps necessary to ensure the consistent determination of claims such as those of the applicants (see, mutatis mutandis , Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 34165/96 to 34173/96, § 59, ECHR 1999 ‑ VII, and Iordan Iordanov and Others v. Bulgaria , no. 23530/02 , § 4, 2 July 2009).

3. Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? Have the applicants been deprived of their “possessions” in breach of Article 1 of Protocol No. 1? In particular, was the levying of the self-imposed local tax in general, and particularly after March 2009, in accordance with the conditions provided for by law? If so, did the competent authorities act in good time, in an appropriate manner and with utmost consistency (see, for example, Beyeler v. Italy [GC], no. 33202/96, §§ 110 in fine , 114 and 120 in fine , ECHR 2000 ‑ I; Broniowski v. Poland [GC], no. 31443/96, § 151, ECHR 2004 ‑ ; Sovtransavto Holding v. Ukraine , no. 48553/99, §§ 97-98, ECHR 2002 ‑ VII and Moskal v. Poland , no. 10373/05, § 45, 15 September 2009) and did that deprivation impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V, and Intersplav v. Ukraine , no. 803/02, §§ 38-40, 9 January 2007 )?

4. The Government are lastly invited to clarify and document the legal nature of the self-imposed local tax (“ samodoprinos ”), and, in particular:

- to provide the Court with the original and a translated copy of the applicable legal provisions which provide the legal framework for the levying of self-imposed local tax, together with all amendments adopted as of January 2006;

- to specify and document the appropriate avenue of redress and the competent authorities as regards the reclaims of overpayments or unlawfully collected self-imposed local tax as of January 2006;

- to comment on the difference, if any, in legal status as of 2006, of local tax levied on the territory of a municipality by the central fiscal authorities, and, on the other hand, tax collected in the territory of a local community by the local government.

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Represented by

75915/12

20/11/2012

Saša POPOVIĆ

21/11/1970

Majdanpek

Dragan VASILJEVIĆ

1436/13

18/12/2012

Mile RADIĆ

10/01/1956

Majdanpek

Dragan VASILJEVIĆ

1696/13

31/12/2012

Silvana LAZAREVIĆ

28/05/1965

Majdanpek

Dragan VASILJEVIĆ

3501/13

31/12/2012

Dragoslav LAZAREVIĆ

28/05/1965

Majdanpek

Dragan VASILJEVIĆ

3504/13

31/12/2012

Dragan TIZMONAR

29/03/1958

Majdanpek

Dragan VASILJEVIĆ

3506/13

31/12/2012

Slavko ANĐIĆ

10/05/1958

Majdanpek

Dragan VASILJEVIĆ

3510/13

31/12/2012

Živorad GOLUBOVIĆ

19/06/1956

Majdanpek

Dragan VASILJEVIĆ

[1] The Municipality of Majdanpek consists of two towns (Majdanpek i Donji Milanov a c) and 12 villages. The local community is the lowest tier of local government. The Majdanpek local community has around 10,000 inhabitants.

[2] Ordinance no. 101-3 on imposing a local tax to fund, re- organise , maintain and erect facilities on the territory of the Majdanpek town local community (published in the Official Gazette of the municipalities of Boljevac, Bor, Zaje č ar, Kladovo, Knja ž evac, Majdanpek, Negotin i Sokobanja, no. 13 of 15 July 2006 ; it came into force on 23 July 2006 ) .

[3] This decision was issued in accordance with the Rule on the conditions and manner of administration of accounts for public revenue and its further distribution (p ublished in Official Gazette of Republic of Serbia no. 20/07 ) .