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SECOND SECTION

Application no. 34799/07
Blagoja PEJCIC
against Serbia
lodged on 7 August 2007

STATEMENT OF FACTS

The applicant, Mr Blagoja Pejcic is a dual Serbian and Croatian national and was born in 1925. He is represented before the Court by Mr J.M. Boric, a lawyer practising in Belgrade.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A.  Relevant background information

The applicant was an officer in the National Army (“JNA”) of the former Socialist Federal Republic of Yugoslavia (“SFRJ”). In 1973 he retired according to the Yugoslav federal regulations, and was granted a pension by the Yugoslav Fund for Social Insurance of the Military Beneficiaries based in Belgrade (Zavod za socijalno osiguranje vojnih osiguranika SFRJ; “the Military Fund”).

The SFRJ provided for a twofold pension insurance – military and civil. The Military Fund was reserved for the staff of the JNA, the insurance scheme having been set up on the federal level, and the pensions were paid from the federal budget. On the other hand, each republic had its own pension fund, set up for the payment of other, “non-military”, pensions.

Following the dissolution of the SFRJ, the Military Fund stopped paying pensions to the pensioners from the newly established states, and in the majority of cases the newly established states took over paying pensions to their citizens.

The applicant was resident in Croatia at the time of its independence, but did not have Croatian citizenship. Therefore, he did not have the right to a pension from the Croatian Pension Fund (Zavod za mirovinsko osiguranje, “the Croatian Fund”) from the outset. When subsequently he was granted Croatian citizenship, he started benefiting from the Croatian Fund in accordance with the applicable Croatian legislation, which provided for the continuity of paying pensions to former JNA officers who were Croatian citizens.

Nonetheless, the issue of the former military pensioners remained unresolved between the newly formed states, and was thus one of the subjects dealt with in the Agreement on Succession Issues, as discussed in Section D below.

B.  The circumstances of the case

On 11 June 1973 the applicant was granted a pension by the Yugoslavian Fund. The pension continued to be paid to him from the Belgrade fund following the Croatian declaration of independence.

On 23 November 1993 the applicant requested the discontinuation of the payment of the pension, since he had been granted a pension in Croatia. From 1 December 1994 the applicant benefited from the pension paid by the Croatian Fund.

By 18 January 2002 the applicant took up residence in Novi Sad, Serbia. On 31 March 2004 the Split branch of the Croatian Fund issued a decision discontinuing payment of the applicant’s pension, since he no longer had residence in Croatia. On 18 January 2005 the decision of 31 March 2004 was upheld on appeal. The Croatian Fund advised the applicant to request payment of his pension from the Serbian Fund.

On 11 November 2004 the applicant filed a request for the re-establishment of his pension with the Fund for Social Insurance of Military Beneficiaries (Fond za socijalno osiguranje vojnih osiguranika, “the Serbian Fund” or “the Fund”). On 11 March 2005 the Fund refused the request, finding that according to Article 82 of the Pension and Disability Insurance Act the applicant only had the right to choose the pension fund once, and he had already used this right by transferring his pension to Croatia in 1994.

On 31 May 2005 the Appeals Commission refused the applicant’s appeal. On 31 January 2008 the Supreme Court quashed the decision of 31 May 2005, as the Fund had failed to take into consideration the Succession Agreement and other international and bilateral regulations applicable to the applicant’s case.

On 15 August 2008, following the instructions of the Supreme Court, the Fund’s Appeals Commission (Komisija Skupštine Fonda za socijalno osiguranje vojnih osiguranika za reviziju i rešavanje u drugom stepenu; “the Appeals Commission”) refused the applicant’s appeal, finding that regardless of the Succession Agreement, the applicant was not entitled to a pension in Serbia. The Appeals Commission again relied on Article 82 of the Pension and Disability Insurance Act, noting that at the moment of the entry into force of the Succession Agreement the applicant had had residence in Croatia, and had been a beneficiary of the Croatian Fund. The Appeals Commission, thus, found that the applicant was expected to move to Croatia and re-establish residence there so that he could reapply for a pension from the Croatian Fund. The Appeals Commission further found that the change of residence could bear no consequence for the pension benefits, since the right to a pension in Croatia had been established in 1993.

On 8 October 2009 the Supreme Court quashed the decision of 15 August 2008, as the Fund had failed to provide proper reasoning for the assertion that the applicant was only entitled to request transfer of his pension once.

On 30 October 2009 the Chairman of the Appeals Commission of the Fund made an official note in relation to the applicant’s request, noting that within sixty days a decision should be drafted granting his appeal, and ordering the Fund to recognize his right to a pension. A further note dated 7 December 2009 and signed also by the Chairman of the Appeals Commission suggests that the staff members of the Fund, a certain M. and J., refused to prepare the draft decision, as they considered that the applicant did not have the right to enjoy a pension in Serbia.

On 31 December 2009 the Appeals Commission, claiming to be acting on the instructions from the Supreme Court’s judgment, again rejected the applicant’s appeal, and instructed the applicant to move to Croatia. The Appeals Commission found that since the applicant had residence in Croatia on 3 June 2004, when the Succession Agreement entered into force, only the Croatian Fund could have been responsible for the payment of his pension.

On 17 December 2010 the Administrative Court upheld the decision of 31 December 2009, only applying the Pension and Disability Insurance Act, failing to respond to the applicant’s claim that the Succession Agreement had precedence over the domestic laws and by-laws, or to his claim that he had established residence in Serbia prior to the entry into force of the said agreement.

C.  Relevant domestic law and practice

(a)  Constitution of the Republic of Serbia

Article 194 of the Constitution provides that international agreements and general rules of international law form a part of the legal order in Serbia. Ratified international agreements may not be in contravention of the Constitution, while other legislation in the Republic may not be in contravention of ratified international instruments and general rules of international law.

(b)  Pension and Disability Insurance Act

Article 82 § 1 of the Pension and Disability Insurance Act (Zakon o penzijskom i invalidskom osiguranju, Official Gazette RS nos. 34/03 and 85/05) provides that the rights from the pension and disability insurance are to be sought from the fund where the applicant was last insured. Article 83 § 3 of the Act provides that an insured person can realise the right to a pension with the fund with which he had the longest period of insurance (kod koga je navršen, odnosno utvrden pretežni deo staža osiguranja), while Article 83 § 4 provides that the right to choose the fund from paragraph 3 can only be exercised once.

(c)  Decree on Pension and Disability Insurance Benefits

Article 8 § 2 of the Decree on Pension and Disability Insurance Benefits of Military Pensioners (Uredba o nacinu ostvarivanja i prestanku prava iz penzijskog i invalidskog osiguranja vojnih osiguranika; Official Gazette FRY no. 36/94) provides that a beneficiary of the military pension insurance who obtains the right to two or more pensions can only enjoy one of his own choosing.

(d)  Relevant practice of the domestic courts

The On 28 April 2011 the Court of Appeal (Apelacioni sud) in Belgrade issued a judgment, in a case concerning a similar issue (case no. Gž. 15764/10), whereby it recalled Article 2 of Annex E to the Succession Agreement, and stated, inter alia:

“[T]he appeal baselessly disputes the claimant’s right to payment of outstanding pensions ... by relying on Article 82 of the Pensions and Disability Insurance Act; therefore the [appeal’s] claim that the claimant had residence on the territory of the Republic of Croatia and that hence by lodging the request with the Pension Insurance Fund ... he had used his right to choose the fund which would pay his pension, ... could not justify a decision to the contrary. This is due to what had been indisputably established in the proceedings: the applicant is a national of the Republic of Serbia, for years back he has had residence on the territory of the Republic of Serbia and ... he filed a request to the [Fund] for the payment of outstanding amounts of pension ... [A]pplying the ... provision of Article 2 of Annex E to the Ratification of the Succession Agreement Act, which has a higher legal force than the provisions of laws and by-laws, the [Fund] was under an obligation to pay to the claimant the outstanding pensions due, and to continue paying them in future.”

D.  The Agreement on Succession Issues

On 29 June 2001 Bosnia and Herzegovina, the Republic of Croatia, the Republic of Macedonia, the Republic of Slovenia and the Federal Republic of Yugoslavia[1] entered into the Agreement on Succession Issues (“the Succession Agreement”). The Agreement entered into force on 3 June 2004.

Annex E of the Succession Agreement regulates pensions. While Article 1 of this Annex provides that each State should assume responsibility for and regularly pay legally grounded pensions funded from the pension funds of the former Yugoslavian republics, Article 2 of the Succession Agreement, in its relevant part, 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 SFRJ irrespective of where they are resident or domiciled, if those pensions were funded from the federal budget or other federal resources of the SFRJ; provided that in the case of a person who is a citizen of more than one State ... if that person is domiciled in one of those States, payment of the pension shall be made by that State.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the length of proceedings.

Under Article 1 of Protocol No. 1 he furthermore complains about the failure of the respondent Party to re-establish the payment of his pension.

Finally, under Article 13 the applicant complains about the absence of an effective domestic remedy for his Convention complaints.

QUESTIONS TO THE PARTIES

1.  Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention, given that the proceedings lasted from 11 November 2004 until 17 January 2011?

2.  Has there been a violation of Article 1 of Protocol No. 1. In particular, was the applicant’s situation sufficiently foreseeable to be considered as “prescribed by law” and, furthermore, was the refusal of the Fund and the Administrative Court to recognize the applicant’s right to a pension in accordance with the law? More particularly, was this refusal in accordance with the Constitution and the Succession Agreement?

3.  Were measures applied in the applicant’s case taken in view of a general interest, and if that was the case, were such measures proportionate to the obligation to protect the applicant’s acquired property rights?

4.  Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention?