Information Note on the Court’s case-law No. 147

December 2011

Lakićević and Others v. Montenegro and Serbia - 27458/06

Judgment 13.12.2011 [Section IV]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Suspension of pension payments following change in legislation regarding the right to do part-time work: violation

Facts – The four applicants, who are all Montenegrin nationals and retired legal practitioners in receipt of a pension, resumed work on a part-time basis at different dates between 1996 and 2002, as permitted by the pension rules then in force. However, following the entry into force of the Pension and Disability Insurance Act 2003, the Pension Fund issued a series of decisions between April 2004 and November 2005 suspending the payment of their pensions until such time as they ceased their professional activities. These decisions were deemed applicable from 1 January 2004 and were upheld by the Ministry of Labour and Social Welfare and the domestic courts.

Law – Article 1 of Protocol No. 1

(a) Admissibility – Since the entire proceedings had been conducted solely within the competence of the Montenegrin authorities, which also had exclusive competence to deal with the subject matter, the applicants’ complaints were compatible ratione personae with the Convention and Protocol No. 1 solely in so far as they concerned Montenegro, not Serbia.

Conclusion : admissible as regards Montenegro, inadmissible as regards Serbia (unanimously).

(b) Merits – The suspension of payment of the applicants’ pensions amounted to an interference with the peaceful enjoyment of their possessions. In view of its conclusion on the question of proportionality (see below), the Court did not consider it necessary to decide whether that interference was lawful. It accepted that it pursued the legitimate aims of social justice and the State’s economic well-being.

As regard proportionality the Court noted that, in accordance with the pension rules then applicable and encouraged by the pension system to which they had contributed over a number of years, the applicants had reopened their private practices on a part-time basis while continuing to receive a full pension. The decision to suspend the pensions had not been due to any changes in the applicants’ circumstances, but to changes in the law. It had particularly affected the applicants as it entirely suspended the payment of the pensions they had been receiving for a number of years and which must have constituted a considerable part of their gross monthly income. Furthermore, the first, second and third applicants had also been obliged to pay back the amounts they had received after 1 January 2004. The applicants had thus been made to bear an excessive and disproportionate burden which, even having regard to the wide margin of appreciation enjoyed by the State in the area of social legislation, could not be justified by the legitimate public interest relied on by the Montenegrin Government. It could have been otherwise had the applicants been obliged to endure a reasonable and commensurate reduction rather than the total suspension of their entitlements or if the legislature had afforded them a transitional period within which to adjust to the new scheme.

Conclusion : violation (unanimously).

Article 41: EUR 8,000 to the first and third applicants, EUR 6,000 to the second applicant and EUR 4,000 to the fourth applicant in respect of pecuniary damage, and EUR 4,000 to each of the applicants in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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