Last Updated on September 22, 2021 by LawEuro
Communicated on 24 January 2019
THIRD SECTION
Application no.24501/11
Sadri SADIKI against Serbia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
A. The relevant context
1. Following the financial collapse of numerous banks in Serbia, in 1998 and 2002 the Serbian State adopted specific legislation converting the foreign currency deposits in these banks, including the Jugobanka AD branch in Kosovo[1], into public debt and then went on to set the time-frame (2016) and the amounts, including interest, to be paid back to their former clients. This legislation, inter alia, also explicitly provided that any foreign currency-related judicial proceedings were to be discontinued.
2. In 2004 the Serbian authorities adopted a decree stating that all persons with foreign currency savings in the said bank would have the same rights as other savers, providing they could prove that they were resident in Serbia on 4 July 2002 and were Serbian taxpayers (see paragraphs 25 and 26 below).
3. In 2013 the Constitutional Court of Serbia declared this decree unconstitutional (see paragraph 27 below).
4. In 2016 the Serbian Government amended the relevant foreign currency savings legislation, providing that it would designate a bank to service the foreign currency savings deposited with Jugobanka AD branch in Kosovo, and that it would further regulate this issue subsequently (see paragraphs 28 and 29 below). It would appear that they have yet to fulfil those commitments.
B. The circumstances of the case
5. The applicants’ personal details, including their nationality, place of residence and tax status, as well as information regarding their legal counsel, respectively, are set out in the appended table. The facts, as submitted by the applicants, may be summarised as follows.
1. As regards the first applicant (Mr Sadri Sadiki, application no. 24501/11)
6. The applicant had three foreign currency accounts with the Jugobanka AD branch in Kosovo, in which he made deposits between 1990 and 1997. The total deposits amounted to 17,661.00 Swiss francs (CHF) and 362 German marks (DM).
7. The applicant’s attempts to retrieve his deposits proved unsuccessful.
2. As regards the second applicant (Mr RuzhdiNura, application no. 13797/13)
8. The applicant had a foreign currency account with the Jugobanka AD branch in Kosovo. Between 20 April 1988 and 9 February 1995 he deposited CHF 10,366.74 into the said account.
9. As of 18 August 2002 the total sum, including deposits and interest, amounted to CHF 11,750.80.
10. The applicant’s attempts to retrieve his deposits proved unsuccessful.
3. As regards the third applicant (Mr BexhetDika, application no. 26705/13)
11. The applicant had a foreign currency account with the Ljubljanskabanka AD branch in Kosovo. By 6 April 1993 the applicant made total deposits in the amount of CHF 2,483, 13 United States Dollars (USD) and DM 130.
12. On 20 April 1993 the applicant’s deposits were transferred to an account with the Jugobanka AD branch in Kosovo. With interest, the applicant’s total deposits amounted to CHF 3,122, USD 17, and DM 240.
13. The applicant’s attempts to retrieve his deposits proved unsuccessful.
4. As regards the fourth applicant (MsShukrije Lena, application no. 27303/13)
14. The applicant had a foreign currency account with the Ljubljanskabanka AD branch in Kosovo.
15. On an unspecified date the applicant’s deposits were transferred to an account with the Jugobanka AD branch in Kosovo. With interest the applicant’s total deposits amounted to CHF 1,838.
16. The applicant’s attempts to retrieve his deposit proved unsuccessful.
C. Relevant domestic law
1. The Act on the Settlement of Obligations Arising from the Citizens’ Foreign Currency Savings 1998 (Zakon o izmirenjuobavezapoosnovudevizneštednjegrađana; published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 59/98, 44/99 and 53/01)
17. Articles 1, 2, 3 and 4 provided that all foreign currency savings deposited with the “authorised banks” before 18 March 1995, including explicitly the deposits in the bank at issue in the present case, were to become public debt.
18. Under Article 10, the State’s responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame.
19. Article 22 provided that, as of the date of this Act’s entry into force (12 December 1998), “all pending lawsuits, including judicial enforcement proceedings, aimed at the collection of the foreign currency covered by this Act shall be discontinued.”
2. The Act on the Settlement of the Public Debt of the Federal Republic of Yugoslavia Arising from the Citizens’ Foreign Currency Savings 2002 (Zakon o regulisanjujavnogdugaSavezneRepublikeJugoslavijepoosnovudevizneštednjegrađana; published in OG FRY no. 36/02)
20. This Act repeals the Act described in paragraphs 17-19 above. In so doing, inter alia, it explicitly acknowledges, as part of the public debt of the Federal Republic of Yugoslavia, all foreign currency deposits previously recognised as such, modifies the time-frame for the honouring the debt in question (from 2012 to 2016) and specifies the amended amounts, plus interest, to be paid annually.
21. Pursuant to Article 13, foreign currency savers can make use of their deposits converted into Government bonds in order to pay taxes or, under Articles 12 and 14, in advance of the said time-frame, for a number of purposes such as buying State property, taking part in the privatisation of State-owned businesses and banks, as well as, under certain conditions and up to a specified amount, for the payment of medical treatment, medication and funeral costs.
22. In accordance with Articles 10 and 11, foreign currency savers shall be able to sell the said bonds and thus immediately obtain their funds in cash, such trading being exempt from all taxation.
23. Lastly, Article 36 reaffirms that “all lawsuits aimed at the collection of the foreign currency savings covered by this Act, including the judicial enforcement proceedings, shall be discontinued.”
24. This Act entered into force on 4 July 2002.
3. The Decree concerning the foreign currency savings deposited with JugobankaJugbanka AD in KosovskaMitrovica (Uredba o bližimuslovimainačinuisplatedevizneštednjegrađanapoloženekodJugobankeJugbanke AD KosovskaMitrovica; published in the Official Gazette of the Republic of Serbia – OG RS – no. 37/04)
25. Article 2 provides, inter alia, that persons who had foreign currency savings with the Jugobanka AD branch in KosovskaMitrovica shall have the rights set out under the Act described in paragraphs 20-23 above, providing they can prove that they were resident in Serbia on 4 July 2002 and are Serbian taxpayers.
26. This decree entered into force on 7 April 2004.
4. The Decision of the Constitutional Court of the Republic of Serbia (no. IUo-107/2009), the amendments to the Act on the Settlement of the Public Debt of the Federal Republic of Yugoslavia Arising from the Citizens’ Foreign Currency Savings 2002 (published in OG RS no. 108/16) and the related developments thereafter
27. On 23 May 2013 the Constitutional Court declared the above decree unconstitutional.
28. On 29 December 2016 the Serbian Parliament amended the 2002 Act described at paragraphs 20-24 above so that, inter alia, it introduced Article 21(a) providing that the Government would designate a bank to service the foreign currency savings deposited with the Jugobanka AD branch in Kosovo, and that they would also further regulate this issue subsequently.
29. At the date of the latest information available to the Court (October 2018), the Government had yet to fulfill their commitments in this regard.
5. The Constitution of the Republic of Serbia (UstavRepublikeSrbije; published in OG RS no. 98/06)
30. Article 170 provides that “a constitutional appeal may be lodged against individual decisions oractions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”
COMPLAINTS
All applicants, relying on Article 1 of Protocol No. 1, complain about the refusal of the Serbian authorities to release any and all of their foreign currency savings together with the interest due. The applicants in applications no. 26705/13 and 27303/13 further complain, under Article 13 of the Convention, that they had no effective domestic remedies at their disposal with respect to the said breach of their property rights.
QUESTIONS TO THE PARTIES
Questions as regards all four applications (nos. 24501/11, 13797/13, 26705/13 and 27303/13)
1. Could an appeal provided for under Article 170 of the Serbian Constitution 2006 (ustavnažalba), in a case such as the applicants’, be considered effective within the meaning of Article 35 § 1 of the Convention (see Vinčić and Others v. Serbia, nos. 44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08, 29758/07 and 45249/07, § 51, 1 December 2009; see also, mutatis mutandis, Lepojić v. Serbia, no. 13909/05, § 53, 6 November 2007)?
The Government are invited to submit any and all relevant Constitutional Court case-law in this respect.
2. Has there been a violation under Article 1 of Protocol No. 1 to the Convention? In particular, has there been a breach of this provision in that the applicants have been denied any and all access to their foreign currency savings?
Question as regards applications nos. 26705/13 and 27303/13
Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?
__________
APPENDIX
| No. | App. nos. | Lodged on | Applicant’s name Date of birth Nationality Place of residence Tax status |
Represented by Practising in |
| 1. | 24501/11 | 08/03/2011 | Sadri SADIKI 18/02/1955 Swiss Oberwil (Switzerland) Not a Serbian tax payer |
_ |
| 2. | 13797/13 | 16/02/2013 | Ruzhdi NURA 01/04/1940 Kosovar Đakovica (Kosovo) Not a Serbian tax payer |
_ |
| 3. | 26705/13 | 03/04/2013 | Bexhet DIKA 13/12/1944 Macedonian Struga (former Yugoslav Republic of Macedonia) Not a Serbian tax payer |
_ |
| 4. | 27303/13 | 03/04/2013 | Shukrije LENA 16/05/1948 Macedonia Struga (former Yugoslav Republic of Macedonia) Not a Serbian tax payer |
BexhetDika (here also the third applicant) |
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