SKENDERI AND OTHERS v. SERBIA
Inadmissible
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
1. A list of the applicants is set out in the appendix. 2. Mr Halit Muhaxhiri maintained that he was a national of Kosovo, while all other applicants maintained that they were nationals of Serbia. Additional personal details, the dates of introduction of their complaints before the Court, and information regarding their legal counsel, respectively, are also set out in the appendix. 3. The Serbian Government (“the Government”) were initially represented by their former Agent, Ms V. Rodić, who was subsequently substituted by their current Agent, Ms N. Plavšić. 4. Following the intervention of the North Atlantic Treaty Organisation (“NATO”) in June 1999, Kosovo was placed under international administration. 5. On 18 June 2004 the Serbian Ministry for Work, Employment and Social Policy, in response to a prior query, informed Kosovo’s Ombudsman that the pension system in Serbia was based on the concept of “ongoing financing”. Specifically, pensions were secured through current pension insurance contributions. Consequently, as the Serbian authorities had been unable to collect any such contributions in Kosovo since 1999, persons who had received their pensions from the Kosovo Branch Office of the Serbian Pensions and Disability Insurance Fund (“SPDIF”) could not expect to continue receiving them. The Ministry also reminded the Ombudsman that Regulation no. 2001/35 on pensions in Kosovo provided for a separate pension system for persons living in the territory (see paragraph 80 below). 6. The facts, as submitted by the parties, may be summarised as follows. 7. The first applicant was born in 1946 and lives in Novi Pazar. 8. On 9 March 1999, following the death of her husband, the first applicant – together with her daughter Ms Beharka Renda, née Skenderi – was granted a survivor’s pension by the SPDIF Branch Office in Kosovo, with retroactive effect as of 27 November 1998. 9. On 16 October 2002 the first applicant informed the SPDIF that she had moved from Kosovo to Novi Pazar, and sought payment of her pension at her new address. 10. Between 2001 and 2004 the first applicant repeatedly complained to the SPDIF that she had never received any pension payments. 11. In March 2006 the first applicant lodged a civil claim with the First Municipal Court in Belgrade, seeking payment of her accrued pensions with statutory interest and the reinstatement of her entitlement pro futuro. 12. On 8 May 2006 the said court found that it did not have territorial jurisdiction and forwarded the case file to the Second Municipal Court in Belgrade. 13. On 11 September 2006 the Second Municipal Court suspended the proceedings. It explained that the international status of Kosovo was yet to be resolved and that in the meantime the Serbian authorities were unable to collect any pension insurance contributions in that territory. The status of Kosovo was therefore a preliminary question which had to be settled before the first applicant’s claim could be adjudicated. 14. On 17 September 2007 the District Court in Belgrade quashed the Second Municipal Court’s decision of 11 September 2006, holding that the status of Kosovo was not a valid reason to suspend the proceedings. 15. On 13 October 2008 the Second Municipal Court reaffirmed the suspension of the first applicant’s civil case, pending the outcome of her complaints lodged with the SPDIF. It also reiterated that the status of Kosovo was a preliminary issue which had to be resolved first. 16. On 4 March 2009 the District Court quashed that decision, reiterating that the status of Kosovo was not a valid reason to suspend the proceedings in question. 17. On 21 December 2011 the Court of First Instance in Belgrade, which had jurisdiction to deal with the matter following the reorganisation of the Serbian judiciary, ruled against the first applicant. It explained that she had not exhausted the administrative remedies before the SPDIF and had, in any event, failed to properly substantiate her calculation of the accrued pension. 18. On 17 May 2012 the Court of Appeal, which also had jurisdiction to deal with the matter following the above-mentioned reorganisation of the Serbian judiciary, quashed that judgment on the grounds of inadequate reasoning. 19. On 23 November 2012 the Court of First Instance again ruled against the first applicant, this time primarily based on her failure to exhaust administrative remedies before the SPDIF. 20. On 11 July 2013 the Court of Appeal ruled partly in favour of the first applicant (Gž. 2179/13). In so doing, it ordered the SPDIF to pay her the pension arrears between 9 March 2003 and 25 October 2012 with statutory interest, as well as the costs of the proceedings. The court opined that the suspension of payment of the first applicant’s pension had been unlawful from a domestic legal perspective and had also been in breach of Article 1 of Protocol No. 1, as explained by the European Court of Human Rights in its judgment in the case of Grudić v. Serbia (no. 31925/08, 17 April 2012). The first applicant’s claim regarding the payment of her accrued pension between 27 November 1998 and 9 March 2003, however, was rejected based on Article 376 of the Obligations Act, which provided for a three-year prescription period (see paragraph 67 below). Finally, the Court of Appeal dismissed the first applicant’s request for the reinstatement of her pension pro futuro on procedural grounds. 21. As of 23 September 2013 the SPDIF resumed payment of the first applicant’s pension. 22. In the meantime, on 27 May 2010, the first applicant also lodged an appeal with the Serbian Constitutional Court (see paragraph 78 below). However, on 4 November 2010 her appeal was rejected because her representative did not have adequate authorisation. 23. The second applicant was born in 1943 and lives in Tutin. 24. On 3 June 1980, following the death of her husband, the second applicant was granted a survivor’s pension by the SPDIF Branch Office in Kosovo. 25. The second applicant regularly received her pension until January 1999, when the monthly payments stopped without an explanation from the SPDIF. 26. Thereafter, the second applicant repeatedly sought the resumption of her pension payments. Finally, on 6 March 2003 she lodged a formal request with the SPDIF. 27. On 21 March 2005 and 1 June 2006 the second applicant again made requests to the same effect. 28. In the absence of any action on the part of the SPDIF, on 27 December 2006 the second applicant brought an administrative dispute (pokrenula upravni spor) before the District Court in Novi Pazar (see paragraphs 73-75 below). 29. On 26 June 2007 the said court ruled in favour of the second applicant and ordered the SPDIF to decide on her request. 30. On 13 February 2008 the SPDIF suspended the proceedings, holding that the pensions-related situation in Kosovo was in a state of flux and that crucial information was lacking. The second applicant’s request was thus deemed not ready for consideration. 31. On 3 December 2008 that decision was quashed on appeal, for procedural reasons, at a higher administrative level and remitted for re-examination. 32. On 23 April 2009 the second applicant brought another administrative dispute before the District Court, seeking, this time, that the court itself decide on the merits of her claim addressed to the SPDIF. 33. On 10 November 2011 the SPDIF rejected the second applicant’s request to have the payment of her pension resumed, “in the absence of proper substantiation”. 34. On 12 January 2012 that decision was upheld on appeal at a higher administrative level. 35. On 3 April 2014 the Administrative Court in Kragujevac, which had jurisdiction to deal with the matter following the reorganisation of the Serbian judiciary, quashed the impugned decisions of the SPDIF on procedural grounds and remitted the case for re-examination. 36. On 30 July 2014 the SPDIF ordered payment of the second applicant’s pension which had accrued between 6 March 2002 and 9 July 2008. Regarding the reinstatement of her pension thereafter, the SPDIF decided that the matter would be considered following receipt of evidence from the United Nations Interim Administration Mission in Kosovo (“UNMIK”) as to whether the second applicant was a beneficiary of a separate “Kosovan pension” as of 2008, which was when she had reached the age of sixty-five (see paragraph 80 below). 37. On 13 January 2015 the SPDIF rejected the second applicant’s request to have the payment of her pension resumed because, based on an UNMIK certificate, she had been a recipient of a Kosovan pension as from 10 July 2008. The SPDIF based its conclusion on Article 119 of the Pensions and Disability Insurance Act (see paragraph 64 below). 38. On 23 January 2015 the second applicant appealed against that decision at a higher administrative level, arguing that the so-called “Kosovan pension”, in the amount of 75 euros (EUR), was not in fact a pension at all but a benefit offered to all persons aged sixty-five or over residing in Kosovo. 39. The third applicant was born in 1950 and lives in Gnjilane. 40. In 1988, following the death of her husband, the third applicant was granted a survivor’s pension by the SPDIF Branch Office in Belgrade. 41. At some point thereafter the third applicant moved from Belgrade to Kosovo. 42. The third applicant regularly received her pension until January 1999, when the monthly payments stopped without an explanation from the SPDIF. 43. Thereafter, the third applicant repeatedly sought the resumption of her pension payments. On 14 February 2006 she lodged a formal request to that effect with the SPDIF. 44. Having received no response and following an additional request which was also ignored, on 18 July 2006 the third applicant brought an administrative dispute before the District Court in Belgrade. 45. On 21 July 2006 the said court declined its territorial jurisdiction and forwarded the case file to the District Court in Gnjilane (provisionally based in Vranje). 46. On 27 March 2008 and 12 May 2009 the third applicant requested information from the District Court in Gnjilane regarding the status of those proceedings. 47. On 28 July 2014 the SPDIF resumed payment of the third applicant’s pension as of 14 February 2005 onwards. 48. The fourth applicant was born in 1943 and lives in Gnjilane. 49. On 1 January 1997 the fourth applicant was granted a disability benefit. 50. The fourth applicant regularly received his benefit until January 1999, when the monthly payments stopped without an explanation having been offered. 51. Thereafter the fourth applicant repeatedly sought the resumption of his benefit payments. On 24 March 2006 he lodged a formal request to that effect with the SPDIF. 52. Having received no response and following an additional request which was also ignored, on 15 August 2006 the fourth applicant brought an administrative dispute before the District Court in Belgrade. 53. On 14 September 2006 the said court declined its territorial jurisdiction and forwarded the case file to the District Court in Gnjilane (provisionally based in Vranje). 54. On 27 March 2008 and 12 May 2009 the fourth applicant requested information from the District Court in Gnjilane regarding the status of those proceedings. 55. On 22 July 2010 the Administrative Court in Belgrade, which had jurisdiction to deal with the matter since the reorganisation of the Serbian judiciary, apparently rejected the fourth applicant’s claim because he had not shown that he had properly made use of the administrative remedies available to him before applying for judicial review. 56. The fifth applicant was born in 1942 and lives in Jagodina. 57. On 24 July 1991 the fifth applicant was granted an old-age pension by the SPDIF Branch Office in Kosovo. 58. The fifth applicant regularly received his pension until March 1999, when the monthly payments stopped without an explanation from the SPDIF. 59. Thereafter the fifth applicant repeatedly sought the resumption of his pension payments. On 28 January 2008 he lodged a formal request with the SPDIF. 60. Having received no response, on 7 October 2008 the fifth applicant again addressed the same request to the SPDIF. 61. On 1 June 2012 the SPDIF rejected the fifth applicant’s claim because he had apparently failed to provide adequate supporting documentation. 62. On 7 August 2012 that decision was upheld on appeal at a higher administrative level. 63. Article 110 provides, inter alia, that a person’s pension and disability rights must be terminated if it transpires that he or she no longer meets the original statutory requirements. However, should an entitled pensioner secure an additional pension from another pension and disability insurance fund established by one of the other States within the territory of the former Yugoslavia, his or her pension paid by the SPDIF must, unless stipulated otherwise by an international agreement, be reassessed (recalculated) based on the pensionable employment period (penzijski staž) already taken into account by the former. 64. Article 119 provides that when a pensioner is entitled to two or more pensions within the territory of the Republic of Serbia, only one of those pensions may be paid, in accordance with the pensioner’s own preference. 65. Article 123 provides that pension instalments which have not been paid owing to circumstances caused by the pensioner can be sought only for the twelve months preceding the date on which he or she lodged a request to that effect. 66. The Opinions state, inter alia, that the pension system in Serbia is based on the concept of “ongoing financing”. Specifically, pensions are secured through current pension insurance contributions. Since the Serbian authorities have been unable to collect any such contributions in Kosovo since 1999, persons who have been granted SPDIF pensions in Kosovo cannot expect, for the time being, to continue receiving them. It is further stated that Regulation 2001/35 on pensions in Kosovo, adopted by UNMIK, provides for a separate pension system for persons living in the territory (see paragraph 80 below). 67. Article 376 §§ 1 and 2 provides, inter alia, that the prescription period for seeking civil compensation is three years from the date on which the claimant first learnt of the damage in question, but that, in any event, the absolute deadline is five years from the time the damage occurred. 68. In response to the situation in Kosovo, this Opinion states, inter alia, that a person’s recognised right to a pension may only be restricted on the basis of Article 110 of the Pensions and Disability Insurance Act (see paragraph 63 above). Recognised pension rights cannot depend on whether current pension insurance contributions can be collected in a given territory. 69. The Opinion further explains that administrative proceedings (upravni postupak) and, if necessary, judicial review proceedings (upravni spor) would be the appropriate avenue to challenge any restriction of a person’s pension rights. 70. Lastly, the Opinion notes that, in this context, the civil courts are competent to adjudicate only cases involving claims of malfeasance (nezakonit i nepravilan rad) on the part of the SPDIF. 71. Article 208 § 1 provides, inter alia, that in simple matters an administrative body must issue a decision within one month of the date on which the claimant lodged his or her request. In all other cases, the administrative body must render a decision within two months thereof. 72. Article 208 § 2 enables a claimant whose request has not been decided within the time-limits established in the previous paragraph to lodge an appeal as if his or her request has been refused. Where an appeal is not allowed, the claimant has the right to directly bring an administrative dispute before the competent court of law. 73. Articles 5 and 6 provide, inter alia, that judicial review proceedings may be brought against the State body or public authority that issued the disputed administrative decision. 74. Article 24 provides that should a second-instance administrative body fail to decide on an appeal lodged more than sixty days earlier, and should it again fail to do so in another seven days upon receipt of the claimant’s repeated request to that effect, the latter may directly institute judicial review proceedings, as if his or her appeal had been rejected. 75. Article 41 § 3 provides that the competent court may not only quash the impugned administrative decision 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 that particular course of action. 76. The substance of Articles 19 § 1, 42 and 43 of this Act corresponds, in the relevant part, to that of Articles 24 and 41 § 3 of the Administrative Disputes Act 1996. 77. The Administrative Disputes Act 2009 entered into force on 30 December 2009 thereby repealing the Administrative Disputes Act 1996. 78. Article 170 provides: “[a] constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed”. 79. As of 8 August 2014, the Constitutional Court considered a total of eleven appeals related in one way or another to the general issue of payment or reinstatement of pensions suspended by the SPDIF (see Už. nos. 537/08, 169/09, 2720/09, 2591/10, 2931/10, 758/11, 1582/11, 1810/11, 3007/11, 2391/12 and 2650/12, decisions rendered between 3 February 2009 and 30 May 2013). In a total of six out of those eleven cases the Constitutional Court found violations of the appellants’ constitutional rights. In two cases the violations concerned the length of proceedings before the SPDIF or the competent courts; in three cases they concerned the inconsistent domestic case-law as regards whether persons seeking reinstatement of their pensions should provide the supporting documentation themselves or whether it should be obtained by the SPDIF proprio motu; and in one case the Constitutional Court quashed an earlier decision adopted by an appellate court for lack of proper reasoning. The said appellate court had rejected the request for payment of accrued pensions because the claimant had allegedly failed to make proper prior use of the administrative remedies which it deemed relevant. In decisions Už. nos. 1582/11, 758/11 and 3007/11 of 20 March 2013, 24 April 2013 and 25 April 2013, respectively, the Constitutional Court also referred to the Grudić judgment, stating that it had taken that case-law into account but that the appellants had simply not complained that their property rights had been breached. Their complaints had focused instead on the inconsistent domestic case-law, as mentioned above. The other appeals were dismissed for various procedural reasons. In any event, the Constitutional Court always considered only the complaints as specified by the appellants and “could not go beyond that”. 80. These regulations provide for a separate system whereby all persons aged sixty-five or over “habitually residing” in Kosovo have the right to a “basic pension”. 81. On 13 June 2008 the Kosovan Assembly adopted this Act, which essentially endorsed the system as set up by the two Regulations cited above but transferred the functional competencies from UNMIK to the Kosovan authorities. 82. These regulations provide, inter alia, that the basic pension referred to in paragraph 80 above, in the amount of EUR 40 monthly, could be increased to EUR 75 monthly in respect of all pensioners aged sixty-five or over, habitually residing in Kosovo, who could, inter alia, prove that they had been paying pension insurance contributions to the SPDIF for at least fifteen years and were not in receipt of another pension on the same basis. 83. These regulations essentially affirm those described in paragraph 80 above, but raise the pension in question from EUR 75 to EUR 80 monthly. 84. Articles 3 (1.4) and 7 § 1 state, inter alia, that a “basic age pension”, that is a “minimal regular monthly pension”, shall be paid to all “permanent citizens” of Kosovo aged sixty-five or over, regardless of whether they had ever been employed. 85. Articles 3 (1.5) and 8 § 1 provide for an “age contribution-payer pension”, that is a “regular monthly pension” for “employed citizens” of Kosovo, who had paid their contributions to the SPDIF prior to 1 January 1999. Article 8 § 2 envisages that all persons entitled to a contribution-based pension shall be categorised by the Ministry taking into account the applicable pensionable employment period, as well as other relevant criteria. 86. Article 13 provides, inter alia, that pension adjustments, taking into account the living costs and the rate of inflation, shall be regulated by the Kosovan authorities on an annual basis.