SECOND SECTION
CASE OF
KRSTIĆ v. SERBIA
(Application no.
45394/06)
JUDGMENT
STRASBOURG
10 December 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of Krstić v. Serbia,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi,
President,
Peer Lorenzen,
Dragoljub Popović,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Helen Keller,
Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 19 November 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 45394/06) against the Republic of
Serbia lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a
Serbian national, Mr Branimir Krstić (“the applicant”), on 1 November
2006.
The applicant was represented by Mr T. Tošić, a lawyer practising in
Pirot. The Serbian Government (“the Government”) were represented by their
Agent, Mr S. Carić.
The applicant alleged a violation of Article 6 § 1 and Article 13 of the
Convention, and of Article 1 of Protocol No. 1 to the Convention, on account of
the authorities’ prolonged failure to enforce a final and enforceable
administrative decision ordering the payment of a supplementary pension to
the applicant.
On 30 June 2011 the application was communicated to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1939 and currently
lives in Pirot.
The facts of the case, as submitted by the
parties, may be summarised as follows.
1. The pension-related administrative proceedings
On 14 September 1990 the applicant was granted an
old-age pension as from 1 September 1990 by the Pirot branch (Filijala Pirot)
of the Serbian Pensions and Disability Insurance Fund (Republički fond
za penzijsko i invalidsko osiguranje zaposlenih - hereinafter “the Fund”).
Following a successful claim for unpaid wages
against his former employer, on 8 December 1993 the applicant asked the Fund to
amend its decision of 14 September 1990. In particular, he asked the Fund to
apply a more favourable period for the calculation of his base pension and to
increase his pension on account of the additional income that he had earned in
the period before retirement (during 1989-90) which had not initially been
taken into account (da se utvrdi nov penzioni osnov i izvrši obračun
razlike u plaćanju).
Following a remittal, on 16 May 1994 the Fund
issued an amended decision (hereinafter “the 1994 decision”): (i) establishing a
new increased pension (14,015.66 old dinars (YUD)); (ii) establishing an
increased "base pension" (penzijski osnov) to be applied from
1 September 1990, applying an adjustment rate of 45.30% as from 1 January 1991
and another adjustment of 28.13% as from 1 April 1994; (iii) determining that a
supplementary pension should be paid on the basis of the difference between the
pension received for the prior period starting on 1 September 1990 and the new
pension granted retroactively by this decision; and (iv) noting that
the calculations for the pension were attached to the decision and formed an
integral part of it. In addition, the reasoning in the 1994 decision
contained an exact figure to be used as the base pension and determined that the
applicant’s pension should be 85% of that amount.
The decision of 16 May 1994 became final on 22
July 1994.
2. Enforcement of the administrative decision of 16
May 1994
On 31 December 2003 the applicant lodged a motion
with the Pirot Municipal Court (“the Municipal Court”) for the enforcement of
the part of the 1994 decision concerning the outstanding supplementary pension,
and also sought payment of statutory interest from 25 January 1994 on the
amounts due. The applicant supplied, together with his request for enforcement,
an expert’s calculation determining the exact amount due.
On 20 January 2005 the Municipal Court issued
the enforcement order as requested.
On 3 February 2006 the Municipal Court quashed
that enforcement order following the Fund’s objection (prigovor) that
there was no proof that the 1994 decision was enforceable.
On 16 February 2006 the Municipal Court
requested that the Fund provide it with a reissued copy of the 1994 decision
containing an enforceability clause (klauzula izvršnosti) within three
days. On 22 February 2006 both the Fund and the applicant supplied the
court with reissued copies of the 1994 decision containing an enforceability
clause.
On 15 March 2006 the Municipal Court rejected
the applicant’s fresh enforcement request. The Municipal Court firstly noted
that the 1994 decision had established the applicant’s entitlement to a pension,
his base pension and the date on which the applicant had acquired his right to a
pension. The court found, however, that the decision in question was not “liable
to enforcement” as it had not set the exact, total amount to be paid, which rather
had been subject to recalculations depending on statistical data. It concluded
that the outstanding debt should be therefore established only in special administrative
proceedings conducted by the Fund’s accounting department - apparently the
so-called “likvidatura”.
On 23 March 2006 the applicant lodged an
objection against the decision of 15 March 2006, claiming that the enforcement
request had contained all the figures and information necessary to calculate
the amount due, also supplying an expert opinion to that effect.
On 26 June 2006 the Municipal Court upheld the
decision of 15 March 2006. The competent panel, in particular, (i) noted, without
making reference to the applicable domestic law, that the applicant should have
asked for the mandatory enforcement of the 1994 decision in the administrative
proceedings (prinudno izvršenje u administrativno-upravnom postupku
(sic.)); and (ii) summarised the Supreme Court’s reasoning in the preceding civil
proceedings concerning the application of the principle of monetary nominalism
and revaluation of the claim (see paragraph 24 below).
3. The applicant’s civil suit and the related
enforcement proceedings
In the meantime, as the Fund had failed to pay
the supplementary pension to the applicant, on 25 January 1996 he filed a civil
claim with the Municipal Court for the determination and payment of the outstanding
supplementary pension as from 1 September 1990, and also sought statutory
default interest and damages to compensate him for the effects of inflation (naknada
inflatorne štete) and maladministration on the part of the Fund.
During the proceedings, on 26 May 1997, a
court-appointed financial expert determined the nominal amount of the supplementary
pension for the period between 1 September 1990 and 24 January 1994. The expert
utilised a method of revalorisation of the pecuniary claims (metod
valorizacije novčanih potraživanja).
On 8 April 2001 the court obtained an additional
expert report on the statutory default interest accrued as from 17 May 1994 to
that date.
Following two remittals, on 12 June 2001 the
Municipal Court, noting the pension payment slips issued between 1990 and 1994,
as well as the exact amounts of the new pension and the base pension as
determined by the 1994 decision, awarded the applicant the outstanding
difference in the pension actually paid and the applicant’s pension entitlement,
plus statutory interest accrued, as well as costs.
On 4 December 2002 the Pirot District Court upheld
the judgment of 12 June 2001. It clarified, as regards the Fund’s appeal, that the
impugned dispute could not be the subject of administrative proceedings, as the
applicant had not challenged the lawfulness of the 1994 decision, but rather
had sought the payment of the pension debt and damages.
Following a remittal in the enforcement
proceedings, on 6 March 2003 the Municipal Court ordered the enforcement of the
judgment of 12 June 2001. On 24 July 2003 the awarded amount, including
the accrued statutory interest, was transferred from the debtor’s account to
that of the applicant.
Acting upon the Fund’s subsequent appeal on
points of law, on 19 June 2003 the Supreme Court overturned the lower courts’
judgments. It stated that (i) in accordance with the law of obligations (the
principle of monetary nominalism), the applicant was not entitled to damages to
compensate him for the effects of inflation or any damages whatsoever in
disputes of a public-law nature (such as the one in question); (ii) pension
rights could only be established or enforced through administrative proceedings
(“administrativno-upravni postupak”); (iii) even assuming that the Fund’s
debt was to be considered as a statutory obligation, the applicant could not be
awarded statutory interest in the civil proceedings (being a condition for a revaluation
of the nominal claim), as the administrative enforcement of the 1994 decision
had not been sought; (iv) the applicant could arguably seek such an award in
enforcement proceedings; and (v) each party should cover its own costs and
expenses. Lastly, the Supreme Court appears not to have addressed the nominal
debt in its judgment.
On 7 August 2003 the Fund filed a motion for recovery
of the entire sum paid to the applicant on 24 July 2003 (see paragraph 23
above) in view of the decision of the Supreme Court of 19 June 2003.
On 19 September 2003 the Municipal Court issued
an enforcement order whereby half of the applicant’s pension was to be
transferred to the Fund’s account each month until the sum had been repaid in
full. It would appear that for the purpose of securing the debt the Municipal
Court blocked the applicant’s access to his entire pension for a certain period
of time.
By 30 August 2010 the applicant had repaid the
total amount that he was required to pay in accordance with the above order.
4. The letter of 30 August 2001 by the Fund’s Pirot
Branch sent to the Government’s Agent
The Pirot Branch of the Fund informed the
Government that it was undisputed that it had failed to pay the difference
between its past payment and the applicant’s pension entitlement for the period
between 1 September 1990 and 31 December 1993. In that regard, the Fund
explained that it had been unable to calculate and pay its debts that arose
during the period of high inflation in Serbia to all beneficiaries of the
pension insurance system, including the applicant, due to limitations in its
computer software (iz tehničkih i programskih razloga).
5. Additional relevant information
The pension system in Serbia is a “pay as you
go” system. The Fund is a State administrative body which is tasked with
awarding and administering pensions and disability insurance payments. It is a
legal entity authorised to levy compulsory social insurance contributions, in
accordance with the rights and obligations determined by applicable law and its
internal regulations. All pension and disability insurance contributions are
transferred to the Fund’s accounts, together with the funds paid by the central
government of the respondent State. The State guarantees the Fund’s obligations.
In the period between 1984 and 1994, the
domestic currency heavily depreciated on several occasions, resulting in its redenomination
on a number of occasions. In 1993 the annual inflation rate was calculated at more
than 1.5 billion per cent, while the average daily rate of inflation was nearly
100 per cent. In October 1993 the Government created a new currency unit. One
new dinar was worth one million of the "old" dinars. On 24 January
1994 the government introduced the "super" dinar, equal to 10 million
new dinars.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The General Administrative Proceedings Act (Zakon o
opštem upravnom postupku; published in the Official Gazette of the Federal
Republic of Yugoslavia - “OG FRY” - nos. 33/97, 31/01 and 30/10)
The Act came into force on 19 July 1997 and
thereby repealed the General Administrative Proceedings Act 1956 (Official
Gazette of the Federal National Republic of Yugoslavia, no. 52/56; Official
Gazette of the Socialistic Federal Republic of Yugoslavia, nos. 10/65, 18/65, 4/77, 11/78, 32/78, 9/86 and 47/86; and OG FRY,
no. 24/94). Article 290 of the 1997 Act establishes
that it is applicable to all proceedings brought before the date it came into
force which have not been concluded.
Articles 257 § 3 and 258 provide that an
administrative decision whose enforcement is impossible (rešenje čije
izvršenje nije moguće) shall be declared null and void, in whole or in
part, either by the relevant authority itself or at the request of a party or a
state/public prosecutor.
. Articles
261-278 set out the procedure to be followed concerning the enforcement of
final administrative decisions.
. Article
261 § 2 provides that an administrative decision shall be executed once it
becomes enforceable (kada postane izvršna). Article 261 § 3(1)
provides that a first-instance administrative decision shall become enforceable
upon expiry of the period in which an appeal against it may be filed, if no
appeal has been filed. Pursuant to Article 261 § 5, the statutory fifteen-day
voluntary enforcement period, used by default if the decision does not set out
any other enforcement period, starts running from the date on which the
decision becomes enforceable.
The manner of
enforcement depends on the type of obligations covered (pecuniary or
non-pecuniary) in the relevant administrative decision.
. Article
266 § 1 provides that the enforcement of non-pecuniary obligations is to be
carried out by administrative bodies. In the event of administrative
enforcement, the applicable procedure is set out in Articles 261-272. Article 267 § 1 states that such enforcement is to be conducted by the administrative authority which had
ruled at first instance, unless otherwise provided by law. Article 268 § 1
provides, inter alia,
that the authority in charge of the enforcement of an administrative decision
shall, on its own motion or at the request of a party, issue an enforcement
order (zaključak o dozvoli izvršenja).
On the other hand, Article 266 § 2 states that
the enforcement of monetary obligations rendered by an administrative decision
is to be carried out by the courts. Pursuant to Article 273 § 1, if an administrative decision is to be executed by
judicial enforcement, the authority which adopted that decision should provide a
copy of the decision containing an enforceability clause (potvrda izvršnosti)
(see Article 268 § 3) and transfer it to the court
competent to execute it. An administrative decision containing an
enforceability clause should, under Article 273 § 1, be
considered as an enforcement instrument (osnov za sudsko izvršenje). Judicial enforcement
is thus carried out through the application of the provisions of the applicable
enforcement act and the provisions of other acts pertinent to judicial
enforcement.
B. The Enforcement Proceedings Act 2000 (Zakon o izvršnom postupku; published in OG FRY nos.
28/00, 73/00 and 71/01)
. Article
1 provided that the Act was applicable to mandatory enforcement of a decision
rendered in the course of administrative proceedings, if it had established a
monetary obligation.
. Article
4 prescribed that the court handling the enforcement proceedings was
obliged to proceed urgently with the enforcement of a decision securing an
established obligation. According to Article 10 § 1,
the competent court should decide on an enforcement request within three days
from the date the request had been filed, while an appellate court should
decide on an objection (prigovor) within fifteen days of the date it had
been filed.
. According
to Article 16 § 2(2), an administrative decision establishing a monetary
obligation fell to be considered as an enforcement instrument (izvršna isprava).
Article 18 §§ 1 and 2
stated that a decision adopted in administrative proceedings would become
enforceable when it had become final and after the period for voluntary
compliance with the obligation had expired.
Pursuant
to Article 20 § 1, a decision is liable for enforcement (podobna
za izvršenje) if it identifies the debtor and creditor, the subject matter,
the type of obligation to be enforced, the amount due (obim) and the
deadline for enforcement. Should the period for voluntary compliance have been
omitted, it should be determined by the enforcement request.
According to Article 37, when administrative
enforcement was to be carried out by a civil court which had not adopted the
decision whose enforcement was requested, a copy of the decision containing an
enforceability clause should be supplied by the body which had adjudicated at
first instance together with a request for enforcement.
. Article 39 § 4 provided that a decision to
reject an enforcement request in full or in part should be fully reasoned (obrazloženo).
C. The Enforcement Proceedings Act 2004 (published in the
Official Gazette of the Republic of Serbia - “OG RS” -
no. 125/04)
45. The Enforcement Proceedings Act 2000, which was in force at
the commencement of the enforcement proceedings in this case, was repealed by
the Enforcement Proceedings Act 2004, which came into force on 23 February
2005. In accordance with Article 304 of the 2004 Act, all enforcement
proceedings instituted prior to 23 February 2005 were to be concluded pursuant
to the 2000 Act.
D. The Practice Direction
adopted by the Supreme Court’s Civil Division on 15 November 2005 (published in
Case-law Bulletin of the Supreme Court nos. 3/05 and 1/11; Pravno shvatanje
Građanskog odeljenja Vrhovnog sud Srbije, sa obrazloženjem, utvrdjeno na
sednici od 15. novembra 2005. godine)
. The
Supreme Court of Serbia adopted the Practice Direction, in response to the
suspensions of pension payments in Kosovo, in order to set out the general
principles as regards the restrictions/suspensions of pension rights, and to
give guidance as to which domestic
authorities, judicial or administrative, are
invested with jurisdiction in different types of pension-related matters.
. The
Practice Direction states that administrative proceedings (upravni postupak)
before the Fund and, if need be, judicial review proceedings (upravni spor)
would be the appropriate avenue to challenge the legality of the Fund’s
decisions establishing one’s pension rights or the amount of pension to be paid,
or those restricting and terminating one’s pension rights.
. It
further explains that the enforcement of final decisions of the Fund
shall be carried out by the civil courts in the course of enforcement
proceedings, which are to be governed by the provisions of the Enforcement
Proceedings Act.
. Lastly,
the Practice Direction also notes that the civil courts are, in this regard,
competent to adjudicate cases involving claims of maladministration (nezakonit
i nepravilan rad) on the part of the Fund.
E. The relevant case-law of the Administrative
Court of Serbia declaring judicial review proceedings an inappropriate legal avenue
as regards the non-enforcement of the Fund’s decisions (U 19497/10 (2005); 25 August 2010)
The claimant had initiated an administrative
dispute concerning the Fund first-instance and appellate bodies’ failure to
issue a decision upon his request for payment of outstanding pension as established
by a 1999 decision of the Fund. The Administrative Court rejected his claim
brought before it. Specifically, the Administrative Court declared that the two
Fund’s bodies lacked jurisdiction ratione materiae to
consider the claimant’s request. Relying on Article 266 § 2 of the General
Administrative Act, the Administrative Court directed the claimant to file an
enforcement request with the competent civil court, rather than have recourse
to the administrative dispute procedure.
F. The relevant practice
of the Serbian courts as to whether an act is liable to enforcement
In the interpretation of the legislation
concerning enforcement matters, the Serbian courts have frequently outlined the
circumstances in which a decision is liable to enforcement, as it is not considered
sufficient for a claimant to simply have an enforceable decision in his or her
favour (High Commercial Court, Pž. 2720/82 and 3763/83).
The courts have found enforcement requests to be
well founded even if the obligation of the debtor has not been precisely
determined (Kragujevac District Court, Gž. 293/95). In addition, the precise
details of the obligation do not necessarily have to be contained in the
operative provisions of the decision, the courts handling enforcement matters
being obliged to enforce a debt if the reasoning in the decision gives
sufficient details to determine the total obligation of the debtor. Should that
be the case, the courts are to instruct the creditor to supplement his
enforcement request in accordance with such reasoning (Supreme Court, Gž.
108/86, in the context of the surface and boundaries of a plot of land). A decision
in criminal proceedings which awards undetermined costs to a party, but leaves
it to the accounting department of a State authority to determine the relevant
amount, is also considered as a decision liable to enforcement (Supreme Court,
decision no. 2319/02 of 4 September 2002).
G. The Organisation of the Courts
Act 2001 (Zakon o uređenju sudova; published in OG RS nos. 63/01,
42/02, 27/03, 29/04, 101/05 and 46/06)
53. Article 4 provides that a court of law cannot refuse to
consider a claim in respect of which its jurisdiction has been established by
law or the Constitution.
H. The Statutory
Interest Act (Zakon o visini stope
zatezne kamate; published in OG FRY no. 9/01 and OG RS no. 31/11)
. Article
1 provides that statutory interest shall be paid as from the date of maturity
of a recognised monetary claim until the date of its settlement. Article 2
states that such interest shall be calculated on the basis of the official
consumer price index plus another 0.5% monthly.
I. The Obligations Act (Zakon
o obligacionim odnosima; published in OG SFRY nos. 29/78, 39/85,
45/89, 57/89 and OG FRY no. 31/93)
. Article
394 provides for the principle of monetary nominalism. According to this
principle, when an obligation concerns a sum of
money, the debtor is bound to pay the number of monetary units in which the
obligation is expressed (that is, its nominal value), unless the law provides
otherwise.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.
1 TO THE CONVENTION AND ARTICLES 6 AND 13 OF THE CONVENTION
The applicant complained under Article 6 of the
Convention and Article 1 of Protocol No. 1 to the Convention that the respondent
State had failed to enforce a final and enforceable decision of 16 May 1994 rendered
in his favour and that he had been unable to obtain payment of the difference between
the pension actually paid to him and the pension for the period between
September 1990 and December 1993 as awarded to him by that decision. The
applicant also complained under Article 13 that he had had no effective
domestic remedy by which he could have had the 1994 decision enforced.
These provisions provide, in their relevant parts,
as follows:
Article 6
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.”
A. Admissibility
1. Compatibility ratione
personae (the applicant’s “victim status”) and/or abuse of the right of
petition
The Government submitted that the applicant had ceased
to be a victim of the alleged violations of the Convention, within the meaning of Article 34 of the Convention, by
virtue of the fact that he had collected his entire claim for supplementary
and indexed-linked pension, together with statutory interest and damages
(see paragraph 23 above). Alternatively, the Government argued that the
applicant had abused his right of petition given that he had failed to inform
the Court of this fact, which was critical for the outcome of the proceedings
before it.
The applicant claimed that he had not considered
the events in question to be relevant to the Court’s examination, given that he
had eventually had to return the entire amount awarded
in the civil proceedings.
As to the applicant’s victim status, the Court
reiterates that a decision or measure favourable to the applicant is not in
principle sufficient to deprive him of his status as a “victim” unless the
national authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention (see, for example, Dalban
v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). Quite apart from the
issues of meaningful redress for or a comprehensive acknowledgment of the
violations allegedly suffered, the Court notes that, in any event, the
applicant had to pay back the entire amount awarded (see paragraphs 25-27
above) and that he has continued to be affected by the non-enforcement of the 1994
decision. The Court therefore finds that the applicant has retained his victim
status for the purposes of Article 34 of the Convention and dismisses the
Government’s objection in this regard.
. Regarding
the second objection, although the applicant could clearly have been
more specific in his application about the outcome of the enforcement
proceedings, information which was known to
him from the outset (see Kerechashvili v. Georgia (dec.), no. 5667/02, 2
May 2006, and contrast with Al-Nashif v. Bulgaria, no. 50963/99, § 89,
June 20, 2002; see also, in general, Miroļubovs and Others v.
Latvia, no. 798/05, §§ 62 and 65, 15 September 2009), the
Court notes that the applicant supplied to the Court, together with the
application form, copies of all relevant judgments in the relevant civil
proceedings. In these circumstances, accepting the importance of that information,
the Court considers that the applicant did not try to deliberately mislead the
Court in his pleadings (see paragraph 59 above; see also Hüttner
v. Germany (dec.), no. 23130/04, 9 June 2006, and Predescu, no.
21447/03, §§ 25-26, 2 December 2008).
It follows that the Government’s objections as
regards compatibility ratione personae and abuse of the right of
petition must be dismissed.
2. Compatibility ratione
temporis as regards the complaint of lack of access to court
. Relying
on the Court’s findings in the case of Blečić
v. Croatia (Blečić v.
Croatia [GC], no. 59532/00, §§ 63-69, ECHR 2006-III),
the Government submitted that the Court lacked temporal jurisdiction to deal
with the alleged violation of the applicant’s right of access to court, which related
to events that had taken place before 3 March 2004, the date on which the
Convention had entered into force in respect of Serbia (“the ratification
date”). Specifically, the applicant’s complaint concerned the outstanding supplementary
pension for the period between 1990 and 1993 and, further, the allegedly ineffective
and inadequate civil proceedings for damages, which the applicant submitted had
deprived him of access to court, had been terminated in 2003 (see paragraph 24
above). The Government also submitted, albeit in another context, that on 24
January 1996 the Fund had informed the applicant by letter that it had not paid
the supplementary pension for the period between 1 September 1990 and 31 December
1993. In doing so, the Fund had explained that, as Serbia had been affected by
hyperinflation during the said period for which the difference in pension was
to be calculated, it had been impossible for it to calculate the exact amount
to be paid in new dinars by converting that debt (konverzija obračunate
razlike za navedeni period). The Court was not provided with a copy of that
letter.
The applicant did not comment.
It is beyond dispute that, in accordance with
the general rules of international law, the provisions of the Convention do not
bind a Contracting Party in relation to any act or fact which took place or any
situation which ceased to exist before the date of the entry into force of the
Convention with respect to that Party (see Blečić v. Croatia [GC], cited above, § 70). In this respect, the
Convention imposes no specific obligation on the Contracting States to provide
redress for wrongs or damage caused prior to that date (see Kopecký v.
Slovakia [GC], no. 44912/98, § 38, ECHR 2004-IX). From the
ratification date onwards, however, the State’s acts and omissions must conform
to the Convention and its Protocols, meaning that all subsequent acts and
omissions fall within the Court’s jurisdiction even where they are merely
extensions of an already existing situation (see, for example, Yağcı
and Sargın v. Turkey, 8 June 1995, § 40, Series A no. 319-A,
and Almeida Garrett, Mascarenhas Falcăo and Others v. Portugal,
nos. 29813/96 and 30229/96, § 43, ECHR 2000-I).
The Court observes from
the outset that the applicant did not complain before it about the loss of
value of the supplementary pension awarded as a result of inflationary
processes, nor did he complain of his unsuccessful litigation before the
Supreme Court in respect of damages to compensate him for the effects of
inflation (see, in that regard, Todorov v. Bulgaria, no. 39832/98,
18 January 2005; Mancheva v. Bulgaria, no. 39609/98, 30 September
2004; Rudzinska v. Poland (dec.), no. 45223/99, ECHR 1999-VI; Gayduk
and Others v. Ukraine (dec.), nos. 45526/99 et seq., ECHR 2002-VI; Ryabykh
v. Russia, no. 52854/99, ECHR 2003-IX; and Čular v.
Croatia, no. 55213/07, 22 April 2010). The applicant’s complaint under
Article 6 § 1 of the Convention instead concerned the partial non-enforcement
of the final 1994 decision,
in conjunction with the authorities’ continued failure to bring mandatory
enforcement proceedings in respect of this decision.
While certain of the Fund’s debts which originated from the period of hyperinflation and enormous
depreciation of the domestic currency may have ceased to exist, such
circumstances fall to be raised and examined prior to a final domestic judicial
determination of a case (see, in respect of final judicial decisions, Jeličić
v. Bosnia and Herzegovina, no. 41183/02, § 44, ECHR 2006-XII;
see also Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).
In the instant case, the Fund, the competent administrative authority empowered to order the payment of a
pension, acknowledged its debts following the last devaluation of the
domestic currency and the conversion to the new currency, by a decision that has
not been appealed, amended or invalidated (revoked) by any subsequent
administrative or judicial decision on the basis that it is impossible for the
decision to be enforced (see paragraphs 9, 10 and 32 above). Moreover, the
Fund provided a copy of the decision containing an enforceability clause in
2006, that is to say following the ratification date (see paragraph 14 above).
Further, the Supreme Court stated that the applicant had no right to damages to
compensate him for the effects of inflation during the relevant period, but did
not exclude his entitlement to a supplementary pension in the original amount
claimed, together with statutory interest (see paragraph 24 above). Lastly, the
Government repeated on several occasions that the applicant is still entitled
to the original amount claimed, plus statutory interest, and did not attempt to
justify the non-enforcement by the extinguishment of the debt or any inability
to enforce the decision.
Having regard to these
considerations, the Court considers that the applicant’s entitlement to
enforcement subsisted subsequent to the Convention’s
entry into force on 3 March 2004 and observes that the impugned
non-enforcement has continued to date (see, mutatis mutandis, Kostić
v. Serbia, no. 41760/04, § 46, 25 November 2008). Against
this background, the Court is competent to examine
events from 3 March 2004 onwards, the date of
ratification of the Convention and Protocol No. 1 by Serbia. It may, however,
have regard to facts occurring prior to ratification inasmuch as they could be
considered to have created a situation extending beyond that date or may be
relevant for the understanding of facts occurring after that date (see Broniowski
v. Poland (dec.) [GC], no. 31443/96, §§ 74-77, ECHR 2002-X).
. The
Government’s plea of inadmissibility on the ground of lack of jurisdiction ratione
temporis must accordingly be rejected.
3. Exhaustion of domestic
remedies
Finally, the Government submitted that the
applicant had not exhausted domestic remedies. They argued, in particular, that
the applicant had not availed himself properly of the ability to seek
administrative enforcement of the impugned decision or, to institute, if
needed, an administrative law claim before the Administrative Court. As regards
the latter avenue, the Government relied on the Administrative Court’s decision
of 25 August 2010 (see paragraph 50 above) and the Court’s finding in the cases
of Juhas Đurić v. Serbia, no. 48155/06, 7 June 2011, Jovičić v. Serbia (dec.), no. 42716/11,
12 February 2013, and Mihailović v. Serbia (dec.), no. 39275/12, 12
February 2013.
The rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention
requires applicants to first use the remedies provided by the national legal
system, thus dispensing States from answering before the Court for their acts
before they have had an opportunity to put matters right through their own
legal system. The only remedies which an applicant is required to avail himself
of are those that relate to the breaches alleged and which are at the same time
available and sufficient. The burden of proof is on the Government claiming
non-exhaustion to satisfy the Court that an effective remedy was available in
theory and in practice at the relevant time; that is to say that the remedy was
accessible, capable of providing redress in respect of the applicant’s
complaints, and offered reasonable prospects of success (see, among other
authorities, Akdivar and Others v. Turkey, 16 September 1996, § 68,
Reports of Judgments and Decisions 1996-IV,
and Lukenda v. Slovenia, no. 23032/02,
§ 44, 6 October 2005).
In the Court’s view, the
questions of which domestic authority is invested with jurisdiction as regards the enforcement of the Fund’s pension-related decisions establishing that it has a pecuniary obligation vis-ŕ-vis individuals
and whether the applicant exhausted all available and effective domestic
remedies inevitably intertwine with the substance
of his complaints under Article 6 of the Convention and Article 1 of Protocol
No. 1. Hence, to avoid prejudging the latter issue, both questions should
be examined together. Accordingly, the Court joins the question of non-exhaustion
of domestic remedies to the merits and reserves it for later consideration.
4. Conclusion
The Court further notes that the applicant’s
complaints under the provisions relied on are not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. They are not inadmissible on
any other grounds and must therefore be declared admissible.
A. Merits
1. Alleged violation of Article 1 of Protocol No. 1
(a) The parties’ submissions
The applicant reaffirmed his complaint. Although
he asserted that the decision of the Supreme Court to reject his civil claim had
been politically motivated and legally incorrect, he maintained that, in any
event, even the Supreme Court had acknowledged his entitlement to the original
debt together with statutory interest, had the enforcement of the final
decision of 1994 in his favour been sought at the material time. In the
meantime, he had indeed sought enforcement of the decision, but to no avail.
The respondent State had not undertaken any steps in order to enforce the 1994 decision
to date.
The Government stated that the Fund’s decision “had
not constituted an enforcement instrument which would be suitable for execution
before the Municipal Court because it had not contained a precise sum”. While
the existence of the claim against the Fund based on its 1994 decision was not
disputed, they: (a) maintained that by virtue of the principle of monetary
nominalism, the applicant’s claim had only corresponded to the original amount
determined by that decision, and thus should not comprise a contemporary value
as suggested by an expert report provided by the applicant; and (b) reiterated
that the applicant had not yet received the supplementary pension because he
had failed to make use of the appropriate administrative remedies.
(b) The Court’s assessment
. The
Court reiterates that a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol No. 1 if it is
sufficiently established to be enforceable - for example by virtue of a
court judgment, an arbitration award or an administrative decision (see Burdov
v. Russia, no. 59498/00, § 28, ECHR 2002-III; Stran Greek
Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A
no. 301-B; and Moskal v. Poland, no. 10373/05,
§ 45, 15 September 2009).
As the Court has held in a number of previous
cases, the inability for a successful litigant to have a judgment or a final
administrative decision rendered in his favour fully enforced, if that
situation persists for a relatively long period of time, may constitute an
interference with his right to the peaceful enjoyment of his possessions, in
the sense of the first sentence of the first paragraph of Article 1 of Protocol
No. 1 (see, among many authorities, Pridatchenko and Others v. Russia,
nos. 2191/03, 3104/03, 16094/03 and 24486/03, § 50, 21 June 2007; Burdov v. Russia, cited
above, § 40; Ramadhi and Others v. Albania, no. 38222/02, §§ 76-77, 13 November 2007;
and Viasu v. Roumania, no. 75951/01, § 60,
9 December 2008). Any such interference by a
public authority should be lawful (see The
Former King of Greece and Others v. Greece [GC],
no. 25701/94, §§ 79 and 82, ECHR 2000-XII), should pursue a legitimate aim
“in the public interest” and must also be reasonably proportionate to the aim
sought to be realised. As regards lawfulness, the
States are under a positive obligation to ensure that the procedures enshrined
in legislation governing the enforcement of final judgments are complied with
(see Fuklev v. Ukraine, no. 71186/01, § 91, 7 June 2005).
Also, the principle of
“good governance” requires that where an issue in the general interest is at
stake it is incumbent on the public authorities to act in good time, in an
appropriate manner and with the utmost consistency (see Beyeler v.
Italy [GC], no. 33202/96, § 10, ECHR 2000-I,
and Megadat.com S.r.l. v. Moldova, no. 21151/04, § 72, 8 April 2008).
Turning to the present case, the Court observes
that the applicant had acquired an entitlement to
receive a supplementary pension by the administrative
decision of 16 May 1994, which decision took final
effect on 22 July 1994 (see paragraphs 9-10 above).
Following the failure of the Fund to pay its
debt in due time, the applicant attempted to obtain payment of the outstanding supplementary pension in civil and
enforcement proceedings (see paragraphs 11-27 above), but to no avail.
The Court further observes that the 1994
decision, when reissued with the enforceability clause, qualified as an enforcement
instrument (osnov za sudsko izvršenje; see paragraphs 37, 40 and 41
above). On the other hand, according to domestic law, an enforcement instrument
does not necessarily equate to a decision liable to enforcement if certain
crucial elements are missing (see paragraph 42 above). In view of the foregoing,
as well as the Government’s pleadings (see paragraph 75 above), the Court must
firstly ascertain whether the Fund’s monetary obligations established by the
relevant part of the 1994 decision gave rise to a debt in the applicant’s
favour that was sufficiently established to be enforceable (see Unistar
Ventures GmbH v. Moldova, no. 19245/03, § 88, 9 December 2008), and,
secondly, identify the appropriate enforcement mechanism as regards the 1994
decision.
The Court firstly observes that the applicant had
acquired the right to a pension by the 1990 decision, while in view of the
outcome of the proceedings concerning wages owed to him, the 1994 decision only
adjusted the pension and “base pension”, indicating their exact amounts, and
awarded a supplementary pension by applying the adjustments retroactively (see paragraphs 7 and 9, and contrast with paragraph 15 above).
. Furthermore,
the Court observes that the obligation liable to enforcement does
necessarily have to be exactly determined, as the courts handling enforcement
matters are obliged to enforce a debt when the reasoning in the decision gives
sufficient detail to determine the total obligation of the debtor (see
paragraph 52 above). The calculation parameters provided by the 1994 decision appear
to have provided sufficient basis for the expert engaged by the applicant in
the enforcement proceedings to calculate the outstanding debt (see paragraph 21
above). The 1994 decision was based on specific criteria/parameters
for further calculations of the supplementary pension, in
regard to which the Fund had no discretion (see, mutatis mutandis, Bulgakova
v. Russia, no. 69524/01, §§ 29 and 31, 18 January 2007, and contrast with
Kiryanov v. Russia
(dec.), no. 42212/02, 9 December 2004). This means that the outstanding debt
was readily ascertainable.
The Court finds that the applicant may be
regarded as having had a substantive interest, sufficiently established and due
to be paid, which equated to a “possession”. The mere fact that a property right
established by an administrative decision is subject to revocation in certain
circumstances does not prevent it from being a “possession” within the meaning
of Article 1 of Protocol No. 1, at least until it is revoked (see Beyeler, cited above, § 105; Moskal v. Poland, cited above,
§ 40; and Jasiūnienė v. Lithuania, no. 41510/98, 6
March 2003). The guarantees of that provision
therefore apply to the present case.
As regards the appropriate avenue for the
enforcement of the Fund’s monetary obligation vis-ŕ-vis the applicant, the
Court firstly reiterates that where a final decision is delivered in favour of
an individual against the State, the former should not, in principle, even be compelled
to bring separate enforcement proceedings (see, mutatis
mutandis, Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004, and Manushaqe Puto
and Others v. Albania, nos. 604/07 et seq., § 71, 31 July 2012).
It is understood that the State’s functions were delegated to the Fund and
their exercise has been controlled by the State (see paragraph 29 above). The
Court cannot endorse the submissions about the applicant’s failure to request
“administrative enforcement” before the administrative bodies. The applicable administrative
and enforcement legislation, as well as the Supreme Court and the
Administrative Court’s interpretation of the law, had all designated the civil courts
as the competent authorities for the execution of an administrative decision establishing
a monetary obligation (see paragraphs 37, 38, 40, 48 and 50). That was the case
with the Fund’s decision in the present case.
By failing to fully comply with the 1994
decision to date, almost nineteen years following its adoption (of which more than
ten years fall within the Court’s competence ratione temporis), the
national authorities have prevented the applicant, who did everything in his
capacity to obtain enforcement of the decision, from receiving the supplementary
pension he reasonably expected to receive. There was apparently legal
uncertainty as to whether the administrative or judicial authorities were invested
with jurisdiction ratione materiae in cases such as that of the
applicant (see paragraph 46 above). The non-enforcement of the 1994 decision
was due, to an extent, to the fact that the Fund had failed to indicate the
exact amount to be paid to the applicant by way of supplementary pension. The
debt established by the 1994 decision was the liability of the Fund, in charge
of administering pensions, which omitted to pay the debt and strikingly claimed
to lack the appropriate software to calculate the amount due in view of
hyperinflation. In addition, the competent enforcement court was empowered to obtain
expert reports in complex cases and was provided with sufficient calculation
parameters to identify the amount due. However, the competent court did not
even attempt to arrive at a final calculation, nor did it make any reference to
the expert report supplied by the applicant. The manner in which the domestic court
conducted these lengthy enforcement proceedings (see paragraphs 11-17 above) and
the reasons given to decline jurisdiction in favour of the “administrative
authorities” appear to be arbitrary. They did not comply with the procedures
enshrined in the relevant legislation for the enforcement of final administrative
decisions establishing obligations of a monetary nature (see paragraphs 37-40, 44,
48, 50 and 53 above).
. The interference with the applicant’s right to the peaceful
enjoyment of his possessions was therefore unlawful (see Fuklev
v. Ukraine, cited above). Such a conclusion makes it
unnecessary to determine whether a fair balance was struck between the demands
of the general interest of the community and the requirements of the protection
of individual rights (see Iatridis c. Greece [GC], no 31107/96, § 58 and
62, ECHR 1999-II; Ambruosi v. Italy, no. 31227/96, §§ 28-34, 19 October 2000;
and Ilić v. Serbia, no. 30132/04, § 75, 9 October 2007).
Accordingly, the Court considers that the
Government’s objection of non-exhaustion of domestic remedies (see paragraph 72
above) should be dismissed, and finds that there has been a violation of Article
1 of Protocol No. 1 to the Convention.
2. Alleged violations of Articles 6 and 13 of the
Convention
. Since
the issues complained of under these Articles are essentially the same as those
already examined under Article 1 of Protocol No. 1 to the Convention, the Court
does not consider it necessary to examine these complaints separately (see, mutatis mutandis, Davidescu v. Romania, no. 2252/02, § 57, 16 November 2006, and Unistar
Ventures GmbH v. Moldova, cited above, § 99).
II. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the internal
law of the High Contracting Party concerned allows only partial reparation to
be made, the Court shall, if necessary, afford just satisfaction to the injured
party.”
A. Damage
The applicant claimed RSD 11,516,828.14 (approximately
115,000 EUR) in respect of pecuniary damage sustained due to the failure
of the domestic authorities to fully enforce the final decision rendered in his
favour. This amount was claimed to correspond to the Fund’s debt as determined
by a qualified expert, whose report was attached to the claim.
The Government contested the pecuniary claim as
excessive and suggested that it be reassessed by qualified experts.
The Court reiterates that a judgment in which it
finds a breach imposes on the respondent State a legal obligation to put an end
to the breach and make reparation for its consequences in such a way as to
restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction)
[GC], no. 31107/96, § 32, ECHR 2000-XI, and Metaxas v. Greece, cited
above, § 35).
. As
regards the present case, the Court has found a violation of Article 1 of
Protocol No. 1 on account of the respondent State’s failure to comply with the Fund’s
decision of 16 May 1994 to date, and also considered it unnecessary to rule on
the merits of the applicant’s complaints under Articles 6 and 13 of the
Convention (see paragraphs 97-98 above). Concerning
the pecuniary damage sought, the Court considers, in
the circumstances of this case, that the full execution of the Fund’s decision would
place the applicant as far as possible in a situation equivalent to that in which
he would have found himself had the requirements of Article 1 of
Protocol No. 1 to the Convention not been breached (see Niţescu
v. Romania, no. 26004/03, § 48, 24
March 2009).
In this respect, the Court considers that the Government shall secure, by appropriate means, the full execution of the final decision of the Fund of 16 May 1994,
together with payment of the statutory interest accrued
(see, mutatis mutandis, Mužević v. Croatia, no.
39299/02, § 91, 16 November 2006, and EVT Company v. Serbia, no.
3102/05, § 60, 21 June 2007). Particular importance should be given to the fact
that the applicant has been awaiting the payment of the supplementary pension
he was awarded for over nineteen years.
. Given
that the applicant did not submit a claim for non-pecuniary damage, the Court
considers that there is no call to award him any sum on that account.
B. Costs and expenses
The applicant further sought RSD 212,515.42 on
account of his costs incurred up to 2003 in connection with the civil
proceedings for damages, plus statutory interest (see paragraph 14 above).
The Government submitted that this claim was
belated, had not been submitted in the manner required by Rule 60 of the Rules of
Court and that, in any event, the applicant was not entitled to such costs in
view of the Supreme Court’s judgment of 19 June 2003 (see paragraph 24 above).
According to the jurisprudence of the Court, an
applicant is entitled to reimbursement of his costs and expenses only in so far
as they are found to have been actually and necessarily incurred and to be reasonable
as to quantum. To this end, Rule 60 §§ 2 and 3 of the Rules of Court
stipulate that applicants must enclose with their claims for just satisfaction
“any relevant supporting documents”, failing which the Court “may reject the
claims in whole or in part”. Although, according to the Court’s case-law, the
applicant should not even have been compelled to bring separate enforcement
proceedings (see Metaxas v. Greece, cited above, § 19, and Manushaqe
Puto and Others, cited above, § 71),
the Court observes that he instituted separate civil and enforcement proceedings
in order to seek payment of the supplementary pension and in fact did
everything in his capacity to prevent the violation. As regards the applicant’s
claim, which it considers to be in time and which was limited to the costs
incurred in connection with the civil proceedings for damages, the Court
considers that, although the Supreme Court held that this avenue was inappropriate,
the applicant’s decision to pursue court proceedings does not appear to have
been an unreasonable choice in view of the Supreme Court’s 2005 Practice
Direction (see paragraph 49 above). His efforts certainly resulted in him
incurring costs. However, given that the applicant failed to substantiate the
difference in costs awarded by the domestic courts and his current claim, the
Court decides to award the applicant EUR 1,000 in respect of the costs incurred
domestically.
C. Default interest
. Lastly,
the Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank, to which should
be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits the Government’s
preliminary objection of non-exhaustion of domestic remedies and dismisses
it;
2. Declares the application admissible;
3. Holds that there has been a violation of
Article 1 of Protocol No. 1;
4. Holds that there is no need to examine the
complaint under Articles 6 and 13 of the Convention;
5. Holds
(a) that the respondent State shall ensure by
appropriate means, within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the full execution of the final decision of the Fund of 16 May 1994,
together with payment of the statutory interest accrued;
(b) that the respondent State is to pay the
applicant, within the same three month period, EUR 1,000 (one thousand euros)
for the costs incurred domestically, which sum is to be converted into the
national currency of the respondent State at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
(c) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 10 December
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi Registrar President
