Judgment (Merits and Just Satisfaction) of European Court of Human Rights, April 17, 2012 (case CASE OF GRUDIC v. SERBIA)
|Resolution Date:||April 17, 2012|
SECOND SECTION CASE OF GRUDIĆ v. SERBIA (Application no. 31925/08) JUDGMENT STRASBOURG 17 April 2012 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 Grudić v. Serbia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Françoise Tulkens, President, Dragoljub Popović, Isabelle Berro-Lefèvre, András Sajó, Guido Raimondi, Paulo Pinto de Albuquerque, Helen Keller, judges,and Stanley Naismith, Section Registrar, Having deliberated in private on 27 March 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 31925/08) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by two Serbian nationals of Bosniak origin, Ms Ljutvija Grudić, formerly Klapija, ("the first applicant") and Mr Mahmut Grudić ("the second applicant"), on 24 June 2008. 2. The applicants, who had been granted legal aid, were represented by Ms R. Garibović, a lawyer practising in Novi Pazar. The Serbian Government ("the Government") were represented by their Agent, Mr S. Carić. 3. The President of the Second Section gave priority to the application in accordance with Rule 41 of the Rules of Court. 4. The applicants alleged that they had not been paid their disability pensions for more than a decade, and, further, that they had been discriminated against on the basis of their ethnic minority status. 5. On 3 March 2010 the President of the Second Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (former Article 29 § 3). THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1952 and 1948, respectively, and are married to each other. 7. In 1995 and 1999, respectively, the applicants were granted disability pensions by the Serbian Pensions and Disability Insurance Fund (Republički fond za penzijsko i invalidsko osiguranje zaposlenih; hereinafter "the SPDIF") - Branch Office in Kosovo. 8. Having lived in Kosovska Mitrovica for many years, in 2005 they moved to Novi Pazar, Serbia proper (i.e. the territory of Serbia excluding Kosovo), as documented in their personal identity cards issued by the respondent State's Ministry of Internal Affairs (Ministarstvo unutrašnjih poslova). A. The pension-related proceedings 9. The first and second applicants regularly received their pensions until 9 June 1999 and 15 January 2000, respectively, when the monthly payments stopped without any explanation having been provided by the SPDIF. 10. On 22 May 2003 the applicants sought that the payment of their pensions be resumed. 11. On 1 March 2005 and 17 May 2004, the SPDIF adopted formal decisions to suspend payment of the applicants' pensions as of 9 June 1999 and 15 January 2000, retroactively. In so doing, it noted that Kosovo was now under international administration which was why the pensions could no longer be paid. 12. By two separate judgments of 11 July 2006 the District Court (Okružni sud) in Novi Pazar annulled (poništio) the impugned decisions, noting, inter alia, that they did not refer to the relevant domestic law or provide a satisfactory explanation as to why the payment of the applicants' pensions should be suspended. In respect of the latter, the District Court effectively re-stated parts of the Supreme Court's Opinion of 15 November 2005, but did not formally cite it (see paragraph 31 below). 13. The SPDIF thereafter filed two separate appeals on points of law (dva zasebna zahteva za vanredno preispitivanje presude) in respect of the District Court's rulings of 11 July 2006. In its appeal as regards the second applicant the SPDIF, inter alia, stated that, since the respondent State has been unable to collect any pension insurance contributions in Kosovo as of 1999, persons who had already been granted SPDIF pensions in this territory could not continue receiving them. In support of this position the SPDIF cited the Opinion of the Ministry for Social Affairs (Ministarstvo za socijalna pitanja) of 7 March 2003 (see paragraph 29 below) and noted that it considered this opinion binding. 14. On 13 September 2007 and 26 February 2008 the Supreme Court (Vrhovni sud Srbije) rejected the said appeals on points of law. Whilst the appeal as regards the second applicant was rejected as incomplete, the same remedy concerning the first applicant was rejected on its merits. In the latter case, the Supreme Court confirmed the impugned decision of the District Court. 15. By means of two separate decisions of 3 April 2008 the SPDIF suspended the proceedings instituted on the basis of the applicants' requests for the resumption of payment of their pensions until such time, as stated in the operative provisions, when the entire issue shall be resolved between the Serbian authorities and the international administration in Kosovo. The SPIDF decisions had an appearance of printed templates where merely the applicants' names, their place of residence and case identification data were entered by hand. 16. The applicants maintain that they filed administrative appeals against these decisions. The Government contests this claim. The applicants have provided the Court with copies of postal certificates indicating that correspondence of some sort had been sent to the SPDIF, as well as the Ministry for Labour, Employment and Social Policy (Ministarstvo rada, zapošljavanja i socijalne politike), but have not supplied the Court with copies of the appeals in question. 17. Without formally deciding to resume the stayed proceedings, on 7 April 2008 the SPDIF requested (zaključkom o obezbeđenju dokaza) the applicants to provide them with the decisions granting their pensions. It would appear that the applicants complied with this request. They have also provided this Court with copies of the decisions in question. 18. There seem to have been no procedural developments thereafter. B. Other relevant facts 19. In June 1999 Kosovo was placed under international administration. 20. The applicants submitted that all ethnically Serbian pensioners from Kosovo had continued receiving their pensions normally, as have many Bosniaks, Roma, Turks and Albanians. They further contended that they also could have solved their pension problem had they been willing to "bribe those in charge". 21. 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. It followed that since the Serbian authorities have been unable to collect any such contributions in Kosovo as of 1999, persons who had already been granted SPDIF pensions in Kosovo also could not expect, for the time being, to continue receiving them. Further, the Ministry noted the adoption of Regulation 2001/35 on pensions in Kosovo, providing for a separate pension system for persons living in the territory (see paragraph 39 below). 22. In 2005, following the destruction of their house, the applicants moved from Kosovska Mitrovica to Novi Pazar located in Serbia proper. 23. On 2 April 2008 the SPDIF certified, inter alia, that the first applicant's maiden family name had been Klapija. 24. Both applicants are suffering from serious heart-related conditions, and are living under very difficult financial circumstances. They maintain, however, that they have never applied for pensions in Kosovo. II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Pensions and Disability Insurance Act (Zakon o penzijskom i invalidskom osiguranju; published in the Official Gazette of the Republic of Serbia - OG RS - nos. 34/03, 64/04, 84/04, 85/05, 101/05, 63/06, 5/09, 107/09, 30/10 and 101/10) 25. Article 104 provides, inter alia, that administrative proceedings before the SPDIF may be reopened, at the request of the insured person or ex proprio motu, if new relevant facts or evidence become known or if in the original proceedings such facts or evidence were not presented. 26. Article 110 provides, inter alia, that ones' pension and disability rights shall be terminated if it transpires that one no longer meets the original statutory requirements. However, should an entitled pensioner secure an additional pension before another pension and disability insurance fund established by one of the other States formed in the territory of the former Yugoslavia, his or her pension paid by the SPDIF, unless stipulated otherwise by an international agreement, shall be reassessed (recalculated) based on the pensionable employment period (penzijski staž) already taken into account by the former. 27. Article 169 provides, inter alia, that the SPDIF's assets consist of: pension and disability insurance contributions; its own property; earmarked sums in the States' budget; subsidies and donations, return on various investments; and a certain portion of the funds obtained through the privatisation of State-owned and socially-owned capital. B. The Decisions of the SPDIF concerning jurisdictional issues adopted on 19 August 1999 and 22 March 2007, respectively (Odluka o privremenom načinu ostvarivanja prava iz penzijskog i invalidskog osiguranja osiguranika i lica sa područja AP Kosovo i Metohija od 19. avgusta 1999. i Odluka o privremenoj nadležnosti za ostvarivanje prava iz penzijskog i invalidskog osiguranja za osiguranike i lica sa područja AP Kosovo i Metohija od 22. marta 2007) 28. These decisions set out details concerning the procedural competence of various branches of the SPDIF as regards the entitlements of insured...
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