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FOURTH
SECTION
CASE OF ŠEKEROVIĆ AND PAŠALIĆ v. BOSNIA
AND HERZEGOVINA
(Applications
nos. 5920/04 and 67396/09)
JUDGMENT
STRASBOURG
8
March 2011
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 Šekerović
and Pašalić v. Bosnia and Herzegovina,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Sverre Erik
Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Vincent A. de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 15 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 5920/04 and 67396/09)
against Bosnia and Herzegovina lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two citizens of Bosnia and
Herzegovina, Mr Mlađen Šekerović and Ms Anka Pašalić
(“the applicants”), on 29 December 2003 and 5
October 2009 respectively.
- Ms
Pašalić was represented by Mr B. Ćupović. The
Government of Bosnia and Herzegovina (“the Government”)
were represented by their Agent, Ms M. Mijić.
- The
applicants alleged that domestic judgments in their favour, finding
structural discrimination in the pension system and ordering some
general measures to be taken, had not been enforced. The case is
similar to Karanović v. Bosnia and Herzegovina, no.
39462/03, 20 November 2007.
- On
17 March 2010 the President of the Fourth Section decided to give
notice of the applications to the Government. It was also decided to
rule on the admissibility and merits of the applications at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- Mr
Šekerović was born in 1932 and lives in Tuzla, Bosnia and
Herzegovina. Ms Pašalić was born in 1926 and lives in
Belgrade, Serbia.
- Mr
Šekerović was granted an old-age pension in 1984 and Ms
Pašalić in 1981.
- In
1992 they moved from what is today the Federation of Bosnia and
Herzegovina (“the Federation”) to what is today the
Republika Srpska (each of the Federation and the Republika Srpska
being an “Entity”). While they were internally displaced,
they received their pensions from the Republika Srpska Pension Fund
(“the RS Fund”).
- Having
returned to the Federation in 2000 and 2001 respectively, the
applicants unsuccessfully sought to have their pension entitlements
transferred from the RS Fund to the Federation Pension Fund (“the
FBH Fund”). Therefore, in 2002 they lodged applications with
the Human Rights Chamber, a domestic human-rights body set up by
Annex 6 to the General Framework Agreement for Peace in Bosnia and
Herzegovina.
- On 10 January 2003 the Human Rights Chamber delivered a
landmark decision concerning three applicants, including one of the
applicants in the present case (Ms Pašalić) and the
applicant in Karanović (cited above), who had been
granted pensions in what is today the Federation before the war, who
had then moved to what is today the Republika Srpska during the war,
and who, for that reason only, continued to receive RS Fund pensions
despite their return to the Federation after the war (pursuant to the
Pension Agreement, see paragraph 16 below). They were thus treated
differently from those who had stayed in what is today the Federation
during the war. The Human Rights Chamber considered that difference
in treatment to be discriminatory and an obstacle to the return of
displaced persons to their pre-war homes (RS Fund pensions were
normally lower than FBH Fund pensions, and the cost of living was
normally higher in the Federation). Furthermore, it held that the
situation complained of had racist connotations (given the nature of
the war, the population that had moved from what is today the
Federation to what is today the Republika Srpska during the war had
primarily been Serbs, and those who had stayed were mostly Bosniacs
and Croats). The Human Rights Chamber ordered the Federation: (a) to
take all necessary legislative and administrative actions by
10 July 2003 to ensure that the applicants were no longer
discriminated against, particularly in comparison to those pensioners
who had remained in what is today the Federation during the war; and
(b) to compensate the applicants for the difference between their RS
Fund pensions and the amount they would have received from the FBH
Fund from the date of their application to the Human Rights Chamber
until the date of the Federation's compliance with the order under
(a) above.
- Having assessed that her pension from the FBH Fund
would have been lower than the nominal amount of her pension from the
RS Fund, on 22 July 2003 the FBH Fund informed Ms Pašalić
that she would not be paid any compensation. The FBH Fund disregarded
the fact that, at that time, pensioners in the Republika Srpska, as
opposed to those in the Federation, did not receive the nominal
amount of their pensions, but only a fraction thereof, owing to
fiscal difficulties in that Entity.
- Mr
Šekerović's case was still pending when the Human Rights
Chamber ceased to exist on 31 December 2003. The Constitutional
Court of Bosnia and Herzegovina (“the Constitutional Court”)
took over his case and on 27 June 2007 delivered a judgment similar
to that in Ms Pašalić's case.
- On 14 December 2007 the FBH Fund decided to pay Mr
Šekerović 8,345 convertible marks (BAM)
by way of compensation for the difference between the sum which he
had received from the RS Fund between 16 April 2002 and 30
November 2007 and the sum which he would have received from the FBH
Fund in the same period. It also decided to continue paying any such
difference in the future. In March 2008, for example, the applicant
received BAM 531 from the RS Fund and BAM 105 from the FBH Fund.
- After the Karanović judgment, cited above,
the FBH Fund revised its practice and agreed to compensate Ms Pašalić
for the difference between the sum which she had actually received
from the RS Fund (rather than the nominal amount of her RS Fund
pension, see paragraph 10 above) and the sum which she would have
received from the FBH Fund in the period after 18 February 2002. In
order to determine the amount due, on 23 June and 22 July 2008
the FBH Fund asked the RS Fund to indicate the sums actually paid to
Ms Pašalić. The RS Fund failed to respond. On 3 July and
28 August 2008 the FBH Fund sent letters to Ms Pašalić
(one to an address in Sarajevo and the other to an address in
Belgrade), but they were returned as undeliverable (addressee
unknown). In June 2010 the applicant finally provided the necessary
information and in July 2010 the FBH Fund paid Ms Pašalić
BAM 1,425 (that is, BAM 839 for 2002, BAM 530 for 2003 and BAM 56 for
2004). Since 2005 the applicant had apparently been receiving more
from the RS Fund than she would have received from the FBH Fund (in
April 2010 she thus received BAM 627 from the RS Fund whereas she
would have received BAM 483 from the FBH Fund).
- On 13 October 2010 the Constitutional Court held that
its decision in Mr Šekerović's case of 27 June 2007 had
not been enforced, because he had not yet been granted an FBH Fund
pension (see paragraph 19 below).
- According to official figures, the average pension has
always been lower in the Republika Srpska than in the Federation.
That difference has, however, decreased: while in 2003 the average
pension was BAM 133 in the Republika Srpska and BAM 192 in the
Federation, in 2009 the figures were BAM 335 in the Republika Srpska
and BAM 346 in the Federation. Furthermore, pensioners in the
Republika Srpska now receive, as do those in the Federation, the
nominal amount of their pensions (until recently, the former, as
opposed to the latter, were only receiving a fraction of their
nominal pensions owing to fiscal difficulties in that Entity).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
- The Pension Agreement
between the local pension funds entered into force on 27 March 2000.
Pursuant to Article 2 § 1 of that Agreement, persons who were
receiving pensions from, for example, the RS Fund on 27 March
2000 will continue to receive their pensions from that Fund, even if
they subsequently move to the Federation.
- All pensioners living in one Entity have equal access
to health care, regardless of whether they receive their pensions
from that Entity or from the other Entity (Article 2 § 2 of the
Health Care Agreement).
- Pensions are not taxable in either of the Entities,
regardless of whether they are received from the Entity concerned,
from the other Entity or from abroad (see the Income Tax Act 2008
and the Income Tax Act 2006).
B. Relevant domestic practice
- The former Human Rights Chamber and the Constitutional
Court rendered four decisions concerning nineteen pensioners
(including the present applicants) who had been granted pensions in
what is today the Federation before the war, who had then moved to
what is today the Republika Srpska during the war, and who, for that
reason only, had continued to receive RS Fund pensions despite their
return to the Federation after the war. They held that this amounted
to discrimination and ordered that some general measures be taken by
the Federation (see paragraph 9 above). The Constitutional Court
considered that the full enforcement of those decisions required that
the applicants be granted FBH Fund pensions and that the applicable
legislation be amended so as to render all others in that situation
eligible to apply for FBH Fund pensions (see decisions CH/02/9364 of
13 December 2007 and CH/00/6413 of 13 October 2010).
- In contrast, as regards those who had been granted
pensions in what is today the Federation before the war, who had
moved to what is today the Republika Srpska during the war and who
had not returned to the Federation after the war, the same bodies
held that the fact that they received RS Fund pensions (instead of
higher FBH Fund pensions) did not amount to discrimination (Human
Rights Chamber's decision CH/03/12994 of 4 November 2003 and
Constitutional Court's decision AP/272/08 of 28 April 2010).
THE LAW
I. JOINDER OF THE APPLICATIONS
- Given their common factual and legal background,
the Court decides that these two applications should be joined
pursuant to Rule
42
§ 1
of the Rules
of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE
1 OF PROTOCOL NO. 1 TO THE CONVENTION
- The
applicants complained of the non-enforcement of the domestic
judgments in issue. They relied on Article 6 of the Convention
and Article 1 of Protocol No. 1 to the Convention.
Article
6, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ....”
Article
1 of Protocol No. 1 to the Convention provides:
“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.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The Government maintained that the Constitutional
Court's decision in Mr Šekerović's case had been fully
enforced in December 2007 when the FBH Fund had not only paid the
difference between the sum which the applicant had received from the
RS Fund and the sum which he would have received from the FBH Fund,
but had also agreed to pay any such difference in the future. Mr
Šekerović consequently, it was argued, could no longer
claim to be the victim of a violation of the Convention.
As
regards Ms Pašalić, they submitted that the Human Rights
Chamber's decision had been fully enforced in July 2010 when the FBH
Fund had paid the difference between the sum which the applicant had
received from the RS Fund and the sum which she would have received
from the FBH Fund. As the applicant had only produced the information
necessary for the calculation and payment of that difference in June
2010, after having introduced her case before the Court, she had
abused the right of individual petition (Article 35 § 3 (a) of
the Convention). Taking into consideration also the size of the sum
at issue, the Government argued that the applicant had not suffered a
significant disadvantage (Article 35 § 3 (b) of the Convention).
- Mr
Šekerović failed to make any written observations in
reply to the Government. Ms Pašalić contended that she
had left Sarajevo in June 2005 because of the refusal of the FBH Fund
to grant her a pension, regardless of the Human Rights Chamber's
order of 10 January 2003, and that she could not be criticised for
not having kept that Fund informed of her whereabouts thereafter.
- The Court notes that the Government, in their
objections, proceeded from the assumption that the enforcement of the
domestic decisions under consideration required nothing more than
compensation for the difference between the sums which the applicants
had received from the RS Fund and those which they would have
received from the FBH Fund. The Government thus took as a starting
point that the transfer of the applicants' pension entitlements from
the RS Fund to the FBH Fund was needless. The Court considers that
this goes to the very heart of the question of whether the domestic
decisions have been enforced, as required by Article 6 of the
Convention and Article 1 of Protocol No. 1 to the Convention (see
paragraphs 27-28 below). It would consequently be more appropriately
examined at the merits stage.
- This
complaint is neither manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention nor inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The applicants maintained that the full enforcement of
the domestic decisions under consideration required that their
pension entitlements be transferred to the FBH Fund.
- The Government disagreed. They contended that the only
difference between those who lived in the Federation whilst in
receipt of an RS Fund pension and those who lived there whilst in
receipt of an FBH Fund pension was the difference in the amount of
pension afforded (see paragraphs 17-18 above), which was decreasing
over time (see paragraph 15 above). Furthermore, the applicants had
been, and would continue to be, compensated for any difference
between their RS Fund pensions and what their FBH Fund pensions would
have been (see paragraphs 12-13 above). The Government submitted that
there was therefore no need to transfer the applicants' pension
entitlements from the RS Fund to the FBH Fund.
- The general principles in relation to the enforcement
of judgments were recently restated in Burdov v. Russia (no. 2),
no. 33509/04, §§ 65-70, ECHR 2009 ....
- The
Court has already dealt with the question raised by this case in
Karanović, cited above, and decided that the enforcement
of a similar domestic decision required the applicant's pension
entitlement to be transferred from the RS Fund to the FBH Fund. It
also held that the fact that the disparity between the pensions paid
by each of the funds had become smaller after the adoption of the
domestic decision in issue was of no relevance to the obligation of
the respondent State to enforce it. The Constitutional Court later
came to the same conclusion in the present applicant's case: despite
the fact that the FBH Fund had agreed to pay Mr Šekerović
the difference between his current pension and what he would have
received as a pension from the FBH Fund and to continue paying any
such difference in the future, the Constitutional Court held that
Mr Šekerović should instead be granted an FBH Fund
pension (see paragraph 14 above). It also ordered in another case
that the relevant legislation be amended in order to render all
others in that situation eligible to apply for FBH Fund pensions (see
paragraph 19 above). The Court, therefore, sees no reason to depart
from the Karanović jurisprudence.
- Since many years have passed since the domestic
decisions became final and the relevant legislation has not yet been
amended in order to render the applicants and others in that
situation eligible to apply for FBH Fund pensions, the Court rejects
the Government's objections (see paragraphs 23-25 above) and finds
that there has been a violation of Article 6 of the Convention and
Article 1 of Protocol No. 1 to the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Ms
Pašalić, without further substantiation, claimed that
there had been a violation of Article 13 in her case.
- The
Court finds that this complaint is manifestly ill-founded for lack of
substantiation and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN
CONJUCTION WITH ARTICLE 1 OF PROTOCOL NO. 1
- Lastly,
Ms Pašalić alleged that the non-enforcement of the
domestic decision in issue amounted to a violation of Article 14
taken in conjunction with Article 1 of Protocol No. 1. Article 14
provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government contested that argument, relying on the reasons set out in
paragraph 28 above.
- According
to the Court's case-law, Article 14 complements the other substantive
provisions of the Convention and the Protocols thereto. It has no
independent existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded by those
provisions. Although the application of Article 14 does not
presuppose a breach of those provisions – and to this extent it
is autonomous –, there can be no room for its application
unless the facts at issue fall “within the ambit” of one
or more of the latter (Sejdić and Finci v. Bosnia and
Herzegovina [GC], nos. 27996/06 and 34836/06, § 39, 22
December 2009, and the authorities cited therein). The Court has
further held that discrimination means treating differently, without
an objective and reasonable justification, persons in similar
situations. “No objective and reasonable justification”
means that the distinction in issue does not pursue a “legitimate
aim” or that there is not a “reasonable relationship of
proportionality between the means employed and the aim sought to be
realised” (ibid, § 42).
- It is undisputed that the facts of this case fall
“within the ambit” of Article 1 of Protocol No. 1 to the
Convention (see paragraph 31 above) and that Article 14 taken in
conjunction with that provision is hence applicable. Turning to the
merits of this complaint, it is noted that the domestic Human Rights
Chamber held that the applicant and other pensioners returning from
the Republika Srpska to the Federation after the war were
discriminated against in comparison to pensioners who had stayed in
what is today the Federation during the war in the absence of any
objective and reasonable justification for such differential
treatment (see paragraph 9 above). The Court does not see any reason
to depart from that ruling. Having regard to its finding that the
measures indicated in that domestic decision have not yet been
implemented (see paragraph 31 above), the Court considers that the
applicant continues to be discriminated against solely on account of
her status as a formerly internally displaced person. There has
therefore been a violation of Article 14 taken in conjunction with
Article 1 of Protocol No. 1.
V. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
- Article 46 of the Convention, in so far as relevant,
reads as follows:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution....”
- In Karanović, cited above, the Court found
a violation of Article 6 of the Convention as a result of the
non-enforcement of a similar domestic decision and held that the
facts of the case disclosed the existence of a shortcoming affecting
a whole class of citizens (those who had been granted pensions in
what is today the Federation before the war, who had then moved to
what is today the Republika Srpska during the war and who, for that
reason only, had continued to receive RS Fund pensions despite their
return to the Federation after the war). It ordered some individual
measures (including the transfer of the applicant's pension
entitlement to the FBH Fund), but left it to the respondent State to
select, subject to supervision by the Committee of Ministers, the
general measures to be adopted to put an end to the violation found
by the Court. After the Karanović judgment, the
respondent State has decided to enforce other similar domestic
decisions (four decisions in total concerning nineteen individuals,
including the present applicants) by paying any difference between
the sums which they receive from the RS Fund and those which they
would receive from the FBH Fund (see paragraphs 12-13 above).
According to the Government, there are more than 3,500 people in a
similar situation who have not yet obtained domestic decisions in
their favour. However, no measures have so far been taken with regard
to them.
- In
the present case, the Court has held, like the Constitutional Court,
that the domestic decisions in question implied that the relevant
legislation be amended in order to render the applicants and others
in that situation eligible for FBH Fund pensions (see paragraph 31
above). It cannot be excluded that the Court would reach the same
conclusion in any future case concerning the non-enforcement of a
domestic decision of this type. Furthermore, while it is true that
only nineteen people have so far obtained such a judgment in their
favour, many others could do so in the future according to the
figures provided by the Government. Since the general measures
ordered by the Constitutional Court in a similar case (see paragraph
19 above) have not yet been implemented, there would appear to be no
basis for rejecting any future similar case simply because the
applicant has not complained to the Constitutional Court (see
Halilović v. Bosnia and Herzegovina, no. 23968/05, §
22, 24 November 2009, where the Court rejected the Government's
objection that the applicant had failed to properly complain to the
Constitutional Court, because general measures ordered by that court
in a similar case had not been implemented). Therefore, although it
is in principle not for the Court to determine what remedial measures
may be appropriate to satisfy the respondent State's obligations
under Article 46, the violation found in the instant
case does not leave any real choice as to the measures required to
remedy it.
- In these conditions, given the large
number of potential applicants, which represents a threat to
the future effectiveness of the Convention machinery,
the Court considers that the respondent State must secure the
amendment of the relevant legislation in order to render the
applicants and others in that situation (namely, those who were
granted pensions in what is today the Federation before the war, who
then moved to what is today the Republika Srpska during the war, and
who, for that reason only, still receive RS Fund pensions despite
their return to the Federation after the war) eligible to apply, if
they so wish, for FBH Fund pensions. It must be emphasised that this
order does not apply to those who did not return to the Federation
after the war (see paragraph 20 above). That being said, those who
are granted FBH Fund pensions after their return from the Republika
Srpska should, just as any other FBH Fund pensioner, keep their
pension entitlements even if they later move abroad (such as Ms
Pašalić, who moved to Serbia after the Human Rights
Chamber had rendered a decision in her favour).
B. 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.”
1. Damage
- Since
Mr Šekerović did not submit a claim for just
satisfaction, the Court considers that there is no call to award him
any sum on that account.
- Ms
Pašalić claimed 12,000 euros (EUR) in respect of
non-pecuniary damage. The Government considered that amount to be
excessive. Making its assessment on an equitable basis, as required
by Article 41 of the Convention, the Court awards Ms Pašalić
EUR 5,000 in this respect.
2. Costs and expenses
- The
applicants did not claim costs and expenses.
3. Default interest
- The
Court considers it appropriate that default interest 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
- Decides to join the applications;
- Joins to the merits the Government's preliminary
objections concerning the complaints under Article 6 of the
Convention and Article 1 of Protocol No. 1 to the Convention,
declares those complaints as well as the complaint under
Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1 admissible and the remainder of the applications
inadmissible;
- Holds that there has been a violation of Article
6 of the Convention and dismisses the Government's preliminary
objections concerning that complaint;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention and dismisses the
Government's preliminary objections concerning that complaint;
- Holds that there has been a violation of Article
14 of the Convention taken in conjunction with Article 1 of Protocol
No. 1 in respect of Ms Pašalić;
- Holds
(a) that
the respondent State is to secure, within six months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the amendment of the relevant legislation in order
to render the applicants and others in that situation eligible to
apply, if they so wish, for FBH Fund pensions;
(b) that
the respondent State is to pay Ms Pašalić, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 5,000 (five thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage, to be converted into convertible
marks at the rate applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of Ms Pašalić's
claim for just satisfaction.
Done in English, and notified in writing on 8 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
