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FOURTH SECTION

Application no. 28233/08
Miroslav KUDUMIJA against Bosnia and Herzegovina
and 2 other applications
(see list appended)

STATEMENT OF FACTS

THE FACTS

The applicants are citizens of Bosnia and Herzegovina. They were born in 1945, 1934 and 1934 respectively, and live in Sarajevo (Mr Miroslav Kudumija) and Tuzla (Mr Jordan Remenovic and Mr Smajo Mašovic).

A.  Introduction

The applicants served in the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“the SFRY”) and retired before April 1992.

Their military pensions were assessed according to their rank and years of service and were paid from the Yugoslav Federal Pension Fund in Belgrade (“the JNA Fund”). Payments from that Fund to JNA pensioners terminated shortly after the outbreak of the 1992-95 war.

In September 1992 Bosnia and Herzegovina[1] issued a decree[2] establishing the right of JNA pensioners to receive monthly financial aid from what later became the Federation of Bosnia and Herzegovina Pension Fund ("the FBH Fund") in an amount corresponding to fifty percent of what would have been their JNA pensions. That provision was later incorporated in the Pension and Disability Insurance Act 1998[3] which entered into force on 31 July 1998 (see "Relevant domestic law and practice" below).

B.  Relevant background

1.  Civilian pensions in the former SFRY

The fundamental rights of workers in the former SFRY with regard to pensions and social security were established in the 1974 Constitution of the SFRY (Article 281 § 3). That constitutional provision was implemented through the Pension and Disability Insurance Framework Act 1982[4].

The regulation of the pension system beyond the rules established in the SFRY law was within the competence of the republics, so that each republic had its own pension legislation and its own public pension fund. In Bosnia and Herzegovina pensions were governed by the Pension and Disability Insurance Act 1990[5]. All employees, except for JNA personnel, paid into the pension fund of their republic of residence. This applied also to the employees of the federal ministries and agencies. The pension funds in the republics worked closely together. If an individual worked and contributed to a pension fund in one republic, he or she could choose to retire in a second republic and still receive his or her pension from the first republic’s pension fund through the distribution system of the second republic. If an individual lived and worked and therefore paid his contributions in more than one republic throughout his working life, upon retirement he would be entitled to receive his pension from the fund to which he had contributed the most.

2.  Military pensions in the former SFRY

The pension rights of military staff were regulated and secured through the federal authorities (Article 281 § 6 of the 1974 Constitution of the SFRY). The JNA military employees paid their contributions to and received their pensions from the JNA Fund. This was the only pension fund existing at the federal level.

The specific aspects of military pensions were regulated by the Military Pension and Disability Insurance Act 1985[6]. This law provided for several mechanisms which rendered the pension treatment of the former JNA military personnel more favourable than that of other groups. In determining their entitlement to a pension JNA pensioners were generally credited fifteen months of service for every year of actual service. Moreover, the amount of a pension was based on the salary of the last December in active service, while for other groups it was based on the average salary of ten consecutive years with the highest income.

3.  The status of the JNA Fund after the dissolution of the former SFRY

In 1994 the JNA Fund was transformed into the Fund for Social Insurance of Military Employees of the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia; "the Serbian Fund") in accordance with the Yugoslav Army Act 1994[7]. Under this Act the Serbian Fund was to continue the payment of JNA pensions. It is unclear, however, how this duty was discharged in practice (whether residence in Serbia and/or non-residence in one of the former SFRY republics, was a condition for these payments). However, it would appear that for some time at least it paid pensions to 1,581 JNA pensioners living in what is today the Republika Srpska[8].

C.  The circumstances of the cases

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

1.  The facts concerning Mr Miroslav Kudumija

The applicant had been in active military service in the JNA until March 1992 when he retired. He had been receiving his pension from the JNA Fund until August 1992.

In October 1992 the applicant started receiving monthly financial aid from what later became the FBH Fund in an amount corresponding to fifty percent of what would have been his JNA penison.

At the applicant’s request, on 1 July 1998 the JNA Fund issued a decision terminating the payment of a pension to the applicant on the basis that he was receiving payments from the FBH Fund. It was further confirmed that the applicant received his last pension from the JNA Fund in August 1992.

On several occasions the applicant asked the FBH Fund to pay his military pension. The FBH Fund responded each time that his right to a pension had been established by the JNA Fund and that, therefore, he could not have any direct claims against the FBH Fund which only provided financial aid after the JNA Fund had stopped paying his pension.

On 6 July 1998 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace) about the impugned situation. On 7 December 2001, the Human Rights Chamber dismissed the applicant’s claim as manifestly ill-founded (together with those of nine other JNA pensioners; see decision nos. CH/98/744 et al) in line with its established case-law concerning JNA pensioners (see "Relevant domestic law and practice" below).

On 5 December 2008 the applicant asked the Federal Ministry of Labour and Social Politics about the status of JNA pensioners after the entry into force of the Agreement on Succession Issues ("the Succession Agreement"). On 16 December 2008 the Ministry informed the applicant that it had taken steps with a view to the implementation of the Succession Agreement, together with the Ministry of Civil Affairs of Bosnia and Herzegovina. However, it did not provide any further information on the action taken.

On 24 December 2008 Mr Kudumija sought the same information from the FBH Fund. On 6 January 2009 the FBH Fund informed him that it did not have the power to apply directly the provisions of the Succession Agreement and that, in the absence of new legislation on pensions, it would continue to apply the Pension and Disability Insurance Act 1998. The applicant never received a formal decision concerning his claim.

On 17 February 2009 the Ministry of Civil Affairs of Bosnia and Herzegovina informed the applicant that all legislation concerning the pension system is made at the Entity level.

2.  The facts concerning Mr Jordan Remenovic

The applicant had been in active military service in the JNA until January 1987 when he retired. He had been receiving his pension from the JNA Fund until April 1992.

In October 1992 the applicant started receiving monthly financial aid from what later became the FBH Fund in an amount corresponding to fifty percent of what would have been his JNA pension.

On 25 December 1998 the applicant asked the FBH Fund to pay his military pension. On 13 January 1999 the FBH Fund responded that his right to a pension had been established by the JNA Fund and that, therefore, he could not have any direct claims against the FBH Fund which only provided financial aid after the JNA Fund had stopped paying his pension.

On 24 October 2008 the applicant asked the Ministry of Civil Affairs of Bosnia and Herzegovina about the implementation of the Succession Agreement concerning JNA pensions. The Ministry forwarded the request to the FBH Fund, which in turn informed the applicant on 12 November 2008 that it did not have the power to apply directly the provisions of the Succession Agreement and that in the absence of new legislation on pensions it would continue to apply the Pension and Disability Insurance Act 1998. The applicant never received a formal decision concerning his claim.

It would appear that the applicant did not lodge an appeal with the Human Rights Chamber or the Constitutional Court of Bosnia and Herzegovina ("the Constitutional Court").

3.  The facts concerning Mr Smajo Mašovic

The applicant had been in active military service in the JNA until January 1988 when he retired. He had been receiving his pension from the JNA Fund until May 1992.

In October 1992 the applicant started receiving monthly financial aid from what later became the FBH Fund in an amount corresponding to fifty percent of what would have been his JNA pension.

On 23 February 1999 the applicant initiated proceedings before the Tuzla Municipal Court ("the Municipal Court") against the FBH Fund seeking the payment of his military pension. On 26 May 2004 the Municipal Court rejected his claim. It held that there was no legal basis for the applicant’s request. That decision was upheld by the Tuzla Cantonal Court and the Constitutional Court on 16 May 2005 and 9 February 2006, respectively.

On 16 August 2004 the applicant initiated proceedings before the FBiH Fund Tuzla Office requesting that years of service in the JNA be noted in his pension records. On 1 April 2010 the FBH Fund Tuzla Office rejected his claim. It explained that the applicant was registered at the JNA Fund which established his right to pension. That decision was upheld by the competent second-instance administrative body and the Tuzla Cantonal Court on 21 July 2010 and 14 November 2011, respectively. On 2 December 2011 the applicant submitted a request for extraordinary judicial review to the Supreme Court of the Federation of Bosnia and Herzegovina. It would appear that those proceedings are still pending.

On 2 October 2004 the applicant asked the FBH Fund to pay his military pension in accordance with Annex E to the Succession Agreement. On 5 November 2004 the FBH Fund informed him that it did not have the power to apply directly the provisions of the Succession Agreement and that, in the absence of new legislation on pensions, it would continue to apply the Pension and Disability Insurance Act 1998. The applicant never received a formal decision concerning his claim.

On 10 April 2006 the State Ministry of Finance and Treasury informed the applicant that under the Constitution of Bosnia and Herzegovina legislation concerning pension systems is made at the Entity level and that, accordingly, the Council of Ministers of Bosnia and Herzegovina had adopted a decision on 27 September 2001 establishing that the implementation of Annex E to the Succession Agreement would be the responsibility of the Entities’ pension funds. The Ministry, further, stated that attempts had been made with a view to resolving that issue on the State level, but that the Entities had shown unwillingness as regards the transfer of pension matters to the State level.

On 11 February 2009 the applicant, together with 22 other JNA pensioners, complained to the Constitutional Court under Article 14 of, and Article 1 of Protocol no. 1 to, the Convention about the State’s failure to respect its obligation under the Succession Agreement.

In its observations submitted to the Constitutional Court on 1 June 2009, the FBH Fund argued that Annex E had not specified the exact amount of the pension to be paid to JNA pensioners. Consequently, by providing certain amounts of payments (financial aid) under the Pension and Disability Insurance Act 1998, the FBH Fund had complied with its obligation to JNA pensioners.

In their observations submitted to the Constitutional Court on 3 June 2009, the Government of the Federation of Bosnia and Herzegovina argued that it could not be held responsible for the implementation of the Succession Agreement because the signatory party to it was the State. They further argued that they had nevertheless taken steps in 2009 to adjust the existing legislation in line with Annex E. In particular, section 139 of the Pension and Disability Inusrance Act 1998 was amended in that JNA pensioners could receive payments from the FBH Fund irrespective of their place of residence and that those payments would be funded from the Entity budget (see "Relevant domestic legislation and practice" below). The Government argued further that Annex E had not defined the amount of JNA pensions to be paid by the successor States.

In his observations of 3 June 2009 the Attorney General of Bosnia and Herzegovina maintained that it was not in dispute that JNA pensioners’ right to a pension was established under Annex E. However, the question of the amount of a pension fell to be regulated by the legislation of the Entites and not by the Succession Agreement. He further proposed that the appeal be dismissed on non-exhaustion grounds as the petitioners had failed to use domestic remedies in the proceedings before the FBH Fund.

On 15 June 2010 the Constitutional Court dismissed the appeals on non-exhaustion grounds, holding that domestic remedies (an appeal against the "silence of administration") had not been exhausted in the proceedings before the FBH Fund.

D.  Relevant domestic law and practice

1.  Constitution of Bosnia and Herzegovina

The Constitution of Bosnia and Herzegovina (Annex 4 to the General Framework Agreement for Peace) entered into force on 14 December 1995. Article III § 1 of the Constitution establishes the matters that are the responsibility of the institutions of Bosnia and Herzegovina. It furthermore provides that all governmental functions and powers not expressly assigned in the Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities (the Federation of Bosnia and Herzegovina and the Republika Srpska). The pension system is not among the matters listed in that Article.

2.  Pension and Disability Insurance Act 1998

Section 139 of the Pension and Disability Insurance Act 1998 of the Federation of Bosnia and Herzegovina[9], which entered into force on 31 July 1998, provides that former JNA pensioners, who were citizens of Bosnia and Herzegovina and had residence in the Federation, would receive financial aid in an amount corresponding to fifty percent of what would have been their JNA pensions. Section 139 was amended on 26 January 2009 in that JNA pensioners can now receive payments from the FBH Fund irrespective of their place of residence and that those payments are funded from the Entity budget.

3.  Human Rights Chamber case-law on JNA pensioners

On 9 March 2000 the Human Rights Chamber delivered its first decision concerning JNA pensioners (see Šecerbegovic and others, nos. CH/98/706 et al). The Chamber held that there had been no violation of the applicants’ right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 to the Convention and that they had not been discriminated against in the enjoyment of their right to social security under Article 9 of the International Covenant on Economic, Social and Cultural Rights.

The reasons were set out in the decision which reads, in the relevant part, as follows:

“The Chamber notes that the applicants have not paid any contributions to the PIO BiH in Sarajevo, nor to any other pension fund in the Republic of Bosnia and Herzegovina or in the Federation. They had no legal relation to the PIO BiH before the issuing of the 1992 Decree with Force of Law on Pension and Disability Insurance During the State of War or Immediate Threat of War. Moreover, the competent authorities of the Federation do not have access to the employment record of the former JNA employees, so that they would not be in a position to determine the entitlement of these pensioners and the amount to which they are entitled under provisions – different from Articles 139 to 141 - of the Federation Law on Pension and Disability Insurance.

The Chamber concludes that the applicants have no claims against the PIO BiH or against the Federation beyond those attributed to them by the 1992 Decree and 1998 Law, which could be regarded as a possession under Article 1 of Protocol No. 1 to the Convention. The applicants’ claim towards the JNA Pension Fund, which is not at issue before the Chamber, appears to remain untouched by the mentioned legislation. Accordingly, the Chamber concludes that the applications do not reveal any interference with the applicants’ possessions by the Federation and, accordingly, no violation of Article 1 of Protocol No. 1 to the Convention.

...

In the light of these considerations, the Chamber concludes that the difference in treatment between the JNA pensioners on the one hand and the pensioners of the Army of the Republic of Bosnia and Herzegovina and the Army of the Federation on the other hand, including the former JNA members who served in these armed forces, has an objective justification in that the members of the second group are former soldiers of the armed forces of the country or government whose pension fund is paying their pensions. As the applicants still receive a pension that is higher than the average pension paid by the PIO BiH, the Chamber does not find that the Federation government exceeded its margin of appreciation in not extending the favourable treatment granted to its own pensioners to the JNA pensioners. The Chamber thus considers that there is no discrimination of the applicants in the enjoyment of the right to social security in comparison to the military pensioners of the Army of the Republic of Bosnia and Herzegovina and the Army of the Federation either."

At the hearing held in that case before the Chamber, the Government of the Federation of Bosnia and Herzegovina explained that the financial aid paid to JNA pensioners had been granted on a humanitarian basis, because the JNA Fund had terminated payment of their pensions shortly after the outbreak of the 1992-95 war.

On 4 July 2003 the Human Rights Chamber delivered its decision in the case of Timotije Bacvic and 285 other JNA pensioners (no. CH/02/10046). It held that by ratification of the Succession Agreement on 31 December 2001, Bosnia and Herzegovina had assumed the responsibility for the payment of JNA pensions. However, since the Succession Agreeement was not in force at the time, the applicants could not have had a claim against Bosnia and Herzegovina that would constitute a protected possession within the meaning of Article 1 of Protocol No. 1. The Chamber went further to note that Bosnia and Herzegovina and/or the Federation of Bosnia and Herzegovina would have to enact legislation in order to make the obligation resulting from the Succession Agreement operative and enforceable, once it entered into force.

E.  Relevant international documents

The Agreement on Succession Issues was the culmination of nearly ten years of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the High Representative (appointed pursuant to Annex 10 to the General Framework Agreement for Peace). It entered into force between Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), the former Yugoslav Republic of Macedonia and Slovenia on 2 June 2004. Article 2 of Annex E to this Agreement, in so far as relevant, reads as follows:

"Each State shall assume responsibility for and regularly pay pensions which are due to its citizens who were civil or military servants of the SFRY irrespective of where they are resident or domiciled, if those pensions were funded from the federal budget or other fed­eral resources of the SFRY ..."

COMPLAINTS

The applicants claim that Bosnia and Herzegovina has the obligation to pay their pensions since the entry into force of the Succession Agreement. Mr Kudumija also claims that until the Succession Agreement came into force Serbia was responsible for the payment of his pension.

The applicants argue that they are the only group of pensioners in Bosnia and Herzegovina which is not receiving the full amount of their pensions from the FBH Fund. They rely on Article 14 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 1 of Protocol 12 to the Convention.

The applicants further complain about the lack of an effective domestic remedy for the above complaints.

QUESTIONS TO THE PARTIES

1.  What is the applicants’ status in the pension system of the Federation of Bosnia and Herzegovina? In particular, do the applicants enjoy full pension rights from the FBH Fund (including all social benefits connected to those rights)? If the applicants enjoy the status of pensioners in the pension system of the Federation of Bosnia and Herzegovina has there been a violation of Article 1 of Protocol No. 1 taken alone and/or in conjunction with Article 14, or a violation of Article 1 of Protocol No. 12 in view of the reduced amount of their pension (see Jankovic v. Croatia (dec.), no. 43440/98, ECHR 2000-X; and Gauder v. Croatia (dec.), no. 45132/98, 21 June 2001)?

2.  If the applicants do not enjoy the status of pensioners in the pension system of the Federation of Bosnia and Herzegovina, do they have "possessions" within the meaning of Article 1 of Protocol No. 1 to the Convention (see, Ališic and Others v. Bosnia and Herzegovina, Croatia, "the former Yugoslav Republic of Macedonia", Serbia and Slovenia (dec.), no. 60642/08, 17 October 2011 and the authorities cited therein)? In particular, is Article 2 of Annex E to the Agreement on Succession Issues directly applicable?

3.  If so, has there been a violation of Article 1 of Protocol No. 1 taken alone and/or in conjunction with Article 14, or a violation of Article 1 of Protocol No. 12 to the Convention arising from the applicants’ inability to receive their pensions from the Pension Fund of the Federation of Bosnia and Herzegovina after the entry into force of the Agreement on Succession Issues? In particular, have the applicants been treated differently from other groups of pensioners (see, by analogy, Andrejeva v. Latvia [GC], no. 55707/00, §§ 74-92, ECHR 2009; Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 61-90, ECHR 2010; and Stummer v. Austria [GC], no. 37452/02, §§ 81-111, 7 July 2011)?

4.  Did the applicants have at their disposal an effective domestic remedy for the above complaints as required by Article 13 of the Convention?

5.  The Government are requested to provide information on the pension treatment of JNA pensioners living in the Republika Srpska before and after the entry into force of the Agreement on Succession Issues.

APPENDIX