CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 17 janvier 2023

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sC7F250FD { font-style:normal } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s879C130D { margin-left:7.05pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .sFBC99493 { font-style:italic } .s710767FC { font-family:Arial; font-size:7.5pt; color:#20335d } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA9C92997 { font-family:Arial; font-style:italic; color:#333333 } .s8DF6C4 { font-family:Arial; color:#333333 } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .sD051EF8 { width:3.72pt; font:7pt 'Times New Roman'; display:inline-block } .s4196892D { width:3.17pt; font:7pt 'Times New Roman'; display:inline-block } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sD8AE9261 { width:36.9pt; display:inline-block } .sB1A859A2 { width:116.43pt; display:inline-block } .sB8467130 { width:24.88pt; display:inline-block } .s766CA6F { width:155.43pt; display:inline-block } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s39E5096F { margin-top:0pt; margin-bottom:14pt; text-align:center } .s6DB91820 { text-align:center } .s8BB62139 { margin-right:auto; margin-left:auto; border-collapse:collapse } .sAC521AF { border:0.75pt solid #949494; padding:1.02pt 5.03pt; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sD8E76205 { border:0.75pt solid #949494; padding:1.02pt 5.03pt } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sEDC5336B { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:12pt } .s85646119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .sE3D66594 { border:0.75pt solid #000000; border-collapse:collapse } .s2D4DB0A7 { height:12.75pt } .sD4EDA58E { border-right-style:solid; border-right-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:bottom } .s19AAD6F1 { border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:bottom } .s9E7DF94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:12pt } .sE2F123B2 { border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:bottom } .s5A90D122 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:bottom } .s4A2D3FB8 { border-style:solid; border-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:bottom } .sF915B135 { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; border-bottom-style:solid; border-bottom-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:bottom } .sE1EC8037 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:bottom } .s497A1C96 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:bottom } .sC0AAC910 { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:3.12pt; padding-left:3.12pt; vertical-align:bottom } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s7C2088F3 { font-family:Arial; text-decoration:underline; color:#000000 } .s4B8D41EE { font-family:Arial; font-size:10pt }   FOURTH SECTION DECISION Application no. 54805/15 Nikola ŽEGARAC against Serbia and 10 other applications (see list appended)   The European Court of Human Rights (Fourth Section), sitting on 17   January 2023 as a Chamber composed of:   Gabriele Kucsko-Stadlmayer , President ,   Tim Eicke,   Faris Vehabović,   Branko Lubarda,   Armen Harutyunyan,   Anja Seibert-Fohr,   Ana Maria Guerra Martins , judges , and Ilse Freiwirth, Deputy Section Registrar, Having regard to the above applications lodged on the various dates indicated in the appended table, Having regard to the decision to give notice to the Serbian Government (“the Government”) of the complaints concerning the reduction in the payments of the applicants’ pensions and to declare inadmissible the remainder of the applications followed by an asterisk in the list appended; Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the first, second, third, sixth, seventh and ninth applicants, Having deliberated, decides as follows: INTRODUCTION 1.     The present applications primarily concern the temporary reduction in the payments of pensions made to the applicants, between November 2014 and September 2018, under the Act on the Temporary Regulation of the Manner of Paying Pensions. THE FACTS 2.     The applicants are Serbian nationals. A list of the applicants is set out in the Appendix I, as are the applicants’ personal details, the dates of the lodging of their respective applications with the Court and information regarding their legal counsel. 3.     The Serbian Government (“the Government”) were represented by their Agent, Ms Z. Jadrijević Mladar. The circumstances of the case 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     The applicants are all pensioners affiliated with the State’s public sector pension scheme who have been receiving old-age pensions ( starosna penzija ) on the basis of mandatory contributions paid into the Serbian Pensions and Disability Insurance Fund ( Republički fond za penzijsko i invalidsko osiguranje zaposlenih – hereinafter “the Pension Fund”; for more details on the pension system and the determination of the amounts to be paid as pensions, see paragraphs 38-42 below). The exact amounts of pension payments to be made to the applicants were determined by decisions ( rešenja ) taken by the various branches of the Pension Fund. The reduction in pension payments under the Act on the Temporary Regulation of the Manner of Paying Pensions 6 .     The pension system in the Republic of Serbia has for most of its existence run at a deficit, which means that government subsidies are required, as contributions are not enough to fully fund pension payments. The deficit apparently reached a historic high in 2014 (see paragraph 46 below). The State authorities explained in the process of the legislative reforms that in order to reduce the high budget deficit and to preserve the financial sustainability of the pension system, they had to introduce both permanent and temporary austerity measures, including a temporary suspension of pension indexation and a temporary reduction in the amounts paid out in respect of State pensions and salaries of civil servants (for more details, see paragraphs 45-52 below). 7 .     As regards the reduction in pension payments, on 26 October 2014 the National Assembly of the Republic of Serbia adopted the Act on the Temporary Regulation of the Manner of Paying Pensions (hereinafter “the Pension Reduction Act”; Zakon o privremenom uređenju načina isplate penzija , which was published in the Official Gazette (hereinafter “OG RS”), no.   116/14 of 27 October 2014, and entered into force the following day). Asserting that the sustainability of the pension system was threatened, the Act stipulated inter alia (i) that pension payments of 25,000 dinars (RSD – around 200 euros (EUR)) and less per month would be exempt from the reduction; (ii) payments from above RSD 25,000 to RSD 40,000 per month would be reduced by 22% (in accordance with the mathematical formula employed) of the part of the payment higher than RSD 25,000, and (iii) payments above RSD 40,000 per month would be reduced by a further 3% of the part of the payment higher than RSD 40,000 (for the entire text of this Act, see paragraph 54 below). The effective pension reduction ranged from 0% for pensions not exceeding the minimum of RSD 25,000 to 19.4% for the highest pensions (see the table in the Appendix II below). 8 .     The Act was directly applicable ( ex lege ) with effect starting from the payment of the pensions for the month of November 2014, that is to say the provisions of the Act were directly applicable to each individual, as relevant, without any further action or individual decision needed on the part of the relevant body. Accordingly, pensioners did not initially receive individual decisions on the reduced amount of the pension ( rešenje o umanjenom iznosu penzije ). 9 .     The applicants received reduced pension payments from November 2014, which were calculated under the third category of pension beneficiaries, as detailed in paragraph 7 above (for more details, see Appendix I; see, also paragraph 100 below). 10 .     Apparently as a result of a reduction in total expenditure and government subsidies between 2014 and 2018, the Pension Reduction Act was repealed and the temporary reduction in pension payments was lifted as of 30 September 2018 (see paragraph 52 below). From October 2018, the Pension Fund started paying to all pensioners, including the applicants, regular pensions calculated in accordance with the applicable principal legislation (see paragraph 39 below), in the nominal value that they had had in October 2014. Domestic avenue of redress 11.     The applicants pursued different legal avenues – such as lodging civil or administrative claims and/or constitutional appeals – in seeking a review of the adverse impact of the Pension Reduction Act on the pension payments to which the Pension Fund had determined that they were entitled; all those avenues were ultimately unsuccessful. 12 .     In particular, following requests lodged by them with the Pension Fund, the applicants in the first, second, third, fifth, sixth, eighth and ninth cases (see Appendix I) received from the Pension Fund decisions ( rešenja ) on the calculation of their respective pensions following the implementation of the reduction. 13.     Furthermore, while the Pension Reduction Act was still in force, the first and ninth applicants further requested the payment of their full pensions from the Pension Fund. On 1 February 2018 and 30 January 2018, respectively, the Pension Fund refused those requests: it deemed that the disputes could not be characterised as being of an administrative nature concerning erroneous calculations; rather, the question constituted a civil matter concerning damage of a pecuniary nature, in respect of which it did not have jurisdiction. In May and July 2019, appeals lodged by the applicants were rejected and further proceedings in which they sought a judicial review before the Administrative Court were terminated on the same grounds. 14.     The eighth and eleventh applicants lodged separate civil claims against the Pension Fund, seeking pecuniary damages in the amount of the parts of their respective pensions that they had not been receiving following the reduction measure. The Belgrade First Basic Court and the Belgrade Court of Appeal dismissed the claims, referring to the fact that the matter had been settled by a decision of the Constitutional Court of 23 September 2015 (see paragraph 16 below) and holding that the Pension Fund had engaged in no unlawful or incorrect work while applying the Pension Reduction Act and calculating pensions. Constitutional appeals lodged by the eighth and eleventh applicants were also rejected. 15.     Like many other individuals, pensioners’ associations and trade unions, all the applicants (except the eleventh) lodged applications with the Constitutional Court – either personally or through the Association of Pensioners Trade Unions – for (i) the institution of proceedings seeking a review of the “constitutionality” and “legality” ( inicijativa za pokretanje postupka za ocenu ustavnosti i zakonitosti ) of the Pension Reduction Act and its compatibility with ratified international treaties, and (ii) the suspension of its enforcement (see paragraphs 33 and 37 below). They argued that the Act was in contravention of Articles 3, 19, 20, 21, 22, 58, 70, 97, 194 and 197 of the Constitution (see paragraphs 25-31 and 35-36 below), and of Article   12 of the European Social Charter, Article 13 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 1 of Protocol No. 12 to the Convention. 16 .     On 23 September 2015, the Constitutional Court rejected ( odbacio ) all the applications, by nine votes to four, and declined to open formal proceedings (the decision (IUž. 531/2014), together with the dissenting opinions, was published in OG RS, no. 88/2015 of 23 October 2015). The decision’s reasoning acknowledged that the reduction in pension payments constituted an interference with pensioners’ property rights, but stated that it had been imposed by law, had pursued a legitimate aim and had been proportionate. It stated, in particular, that: (i) the reduction in pension payments, which had been imposed by the Pension Reduction Act, did not run counter to the Constitution or the international treaties ratified by the State; (ii) Article 70 of the Constitution (see paragraph 30 below), which guaranteed the right to pension insurance, did not guarantee the content of the right that derived from it or the ultimate amount of the pension that a person received; these were matters for the legislature to decide upon, given that the legislature had constitutional authority under Article 97.8 to provide and organise the system to be employed in various areas, including that of social insurance (see paragraph 31 below); (iii) therefore, those persons who had lodged applications for an assessment of the constitutionality of the Pension Reduction Act could not rely on Article 20 of the Constitution (see paragraph 26 below); the level of pensions could vary [that is to say increase or decrease] – otherwise, the legislature would not be able to adapt its role according to what was in the public interest and to what the circumstances in question warranted; (iv) in that connection, the Serbian pensions system is based on the “Bismarck model” of mandatory contributions from employees – those contributions are treated as public assets, which are used to finance pension payments to current pensioners (the “pay-as-you-go” model), and not for the payment of the pensions of those who made the contributions (whose pensions are to be calculated in accordance with the formula and variable general and personal coefficients determined by the legislature at the relevant time); (v) the adoption of the Pension Reduction Act had been justified in view of the fact that it had been in the public interest, given that it had contributed to maintaining the financial sustainability of the pension system and to ensuring the regular payment of pensions, while most pensioners had not been affected by the austerity measures; (vi) the temporary character of the measures at issue, the principle of social solidarity and the fact that the applicants had not been overburdened by the measures were considerations relied on by the Constitutional Court to deem them to be proportionate. 17.     The four dissenting judges were of the view that the Court should have opened formal proceedings and examined the issues in question only after first organising a public debate to hear the views of both sides and of eminent experts. Proceedings before the Court as regards the fourth, fifth, eighth and ninth applicants 18 .     In their observations of 3 June 2021 on the admissibility and the merits, the Government informed the Court that the fifth applicant, Mr   Branimir Popović, and the eighth applicant, Ms Milka Čulić, had died on 1   September and 1 October 2020, respectively. 19 .     By registered letters of 1 July 2021, the Court invited (potential) relatives of the fifth and eighth applicants to comment on the information provided by the Government regarding their deaths and to indicate by 29   July 2021 whether they wished to pursue the applications lodged by the deceased applicants before the Court in their capacity as the applicants’ heirs. Their attention was drawn to the fact that a failure on their part to reply could lead to the conclusion that nobody was entitled and/or wished to pursue the application in the applicants’ respective stead. 20 .     A return receipt dated 8 July 2021 in respect of a letter sent to the eighth applicant by the Court indicated that the eighth applicant had died and that no one had received the letter. In the meantime no heirs put themselves forward to continue with her application. 21 .     The letter sent to the fifth applicant’s address was returned to the Court together with a receipt ( povratnica ) indicating that the letter had not been delivered. 22 .     As regards the fourth applicant, Ms Vesna Popović, the Court sent her letters dated 17 November 2020, 12 March 2021 and 1 July 2021 inviting her to appoint a legal representative, to set out her position on the question of a friendly settlement in respect of her case, or to submit her written comments to the Government’s observations. Those letters received no response, so by a registered letter dated 3   September 2021 she was notified that the periods allowed for her to undertake the above-stated actions had expired; the letter further noted that no extension of the relevant time-limit had been requested. The applicant’s attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases in the event that circumstances lead to the conclusion that the applicant in question does not intend to pursue the respective application. Noting that the fourth and fifth applicants had provided the Court with the same address, including the number of the apartment, the Registry also sent to the fourth applicant a copy of the letter of 1 July 2021 that had been sent to the fifth applicant. The return receipt of 4 October indicated that the fourth applicant had received both letters on 13 September 2021. However, no response has been received by the Registry. 23 .     In his letter of 9 July 2021, the representative of the ninth applicant, Ms Nada Bunjak, informed the Court that she had died on 8 October 2020. The representative later on informed the Court that following inheritance proceedings, on 19 September 2021 the relevant authority (a public notary) had declared, inter alia , that the ninth applicant’s sister, L.B., had inherited all those of her rights and obligations arising from the proceedings before the Court in the present case. RELEVANT LEGAL FRAMEWORK AND PRACTICE CONSTITUTIONAL AVENUE OF REDRESS The Constitution of the Republic of Serbia ( Ustav Republike Srbije , published in OG RS, no. 98⁄06) 24 .     The provisions of the Constitution, referred to by the applicants or the Government, provide as follows. 25 .     Articles 3 and 19 provide, inter alia , that the rule of law is a fundamental prerequisite of the Constitution which is based on inalienable human rights. 26 .     Article 20 provides that human and minority rights guaranteed by the Constitution may be restricted by the law if the Constitution permits such a restriction and for the purpose allowed by the Constitution, to the extent necessary to meet the constitutional purpose of the restriction in a democratic society and without encroaching upon the substance of the relevant right (Article 20 §   1). An acquired level of human and minority rights ( stečeni nivo ljudskih i manjinskih prava ) may not be lowered (Article 20 § 2). When restricting human and minority rights, all State bodies, particularly the courts, shall be obliged to consider the substance of the restricted right, the relevance of the aim of the restriction in question, the nature and extent of that restriction, the relationship between the restriction and the aim thereof, and the possibility of achieving the purpose of the restriction through less restrictive measures (Article 20 § 3). 27.     Article 21 provides that “everyone shall be equal before the Constitution and the law” and “shall have the right to equal legal protection, without discrimination”. All “direct or indirect discrimination based on any grounds – particularly on grounds of race, sex, national or social origin, birth, religion, political or other opinion, property status, culture, language, age, [or] mental or physical disability – shall be prohibited”. Special measures that may be introduced in order to achieve full equality of individuals or a group of individuals who are otherwise in a substantively unequal position compared to other citizens shall not be deemed to constitute discrimination. 28.     Article 22 provides that everyone shall have the right to judicial protection when any of their human or minority rights, as guaranteed by the Constitution, have been violated or denied, as well as to address the international organisations to request their protection. 29 .     Article 58 guarantees the peaceful enjoyment of possessions and other property rights acquired under law. The “right to property” ( pravo na imovinu ) may be revoked or restricted only in the public interest (as established by the law) and for compensation, which cannot amount to less than market value. The law may restrict the manner of using property. 30 .     Article 70 provides that pension insurance shall be regulated by the law and that the Republic of Serbia shall ensure the economic security of pensioners. 31 .     Article 97 prescribes the various responsibilities of the Republic of Serbia, including the organisation and regulation of labour affairs, health and safety in the workplace, employment, social insurance and other forms of social security, and other economic and social matters of public interest (Article 97.8). 32.     Article 167 § 1 provides that the Constitutional Court shall rule on the compliance of laws and other legal instruments with the Constitution and with generally accepted rules of international law and ratified international treaties and on the compliance of ratified international treaties with the Constitution. 33 .     Article 168 § 2 provides, inter alia , that every natural person has the right to lodge an application for the institution of proceedings regarding the assessment of the “constitutionality” and/or “legality” of a specific piece of legislation. 34 .     Article 170 provides that “a constitutional appeal may be lodged against individual decisions or actions [taken by] State bodies (or organisations exercising delegated public powers) that violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies [for the protection of those rights or freedoms] have already been exhausted or have not been prescribed”. 35 .     Article 194 regulates the hierarchy of domestic and international legal instruments, providing the Constitution as the supreme legal instrument, and stipulating that, inter alia , all laws and other general instruments enacted in the Republic of Serbia must be in compliance both with the Constitution and with ratified international treaties and generally accepted rules of international law. 36 .     Article 197 prohibits laws and other legal instruments from having retroactive effect, except if so required by the general public interest, as established during the procedure of adopting the law or legal instrument in question. The Constitutional Court Act ( Zakon o Ustavnom sudu , published in OG RS, no. 109/07, with subsequent amendments) 37 .     Article 50, Article 53 § 1, Article 58 § 1, Article 61 and Article 62 of this Act provide, inter alia , that the Constitutional Court may, of its own motion, assess the constitutionality and/or legality of a piece of legislation, provided that two thirds of its judges decide to do so. However, in the event that an application for the assessment of the constitutionality and/or legality of a piece of legislation is lodged by a natural person, it is up to the Constitutional Court itself to rule on whether it will institute formal proceedings. If it decides to do so, a formal decision to this effect will be rendered, and a public hearing organised (if considered necessary). If proceedings are brought and a breach of the Constitution or a ratified international treaty is established, the impugned legislation (or certain provisions thereof) will cease to be in force as of the date of the publication of the Constitutional Court’s decision in the OG RS. Anyone whose rights have been violated by an individual decision based on the application of that legislation is entitled, within six months of the Constitutional Court’s decision being published, to ask the relevant authorities to amend that decision. In the alternative, the Constitutional Court may decide to order other measures or award compensation to the aggrieved parties if it considers that effective redress could not otherwise be secured. PENSION SYSTEM IN SERBIA AND THE RELEVANT LEGAL FRAMEWORK Pension system in general 38 .     After regulating a single-pillar pension system for decades, Serbia now has two pension schemes: (i) an obligatory State statutory pension scheme that was set up almost one hundred years ago – initially along the lines of the “Bismarck model” of an earnings-related system with a defined-benefit public scheme, and (ii) a voluntary personal private pension which has been in the process of development since the adoption of the Act on Voluntary Pension Funds in 2005. 39 .     After political changes at the beginning of 2000s, a new principal Pensions and Disability Insurance Act was adopted in 2003, with subsequent amendments (hereinafter “the Pensions Act”; Zakon o penzijskom i invalidskom osiguranju , published in OG RS, nos. 34/03, 64/04, 84/04, 85/05, 101/05, 63/06, 5/09, 107/09, 30/10, 101/10, 93/12, 62/13, 108/13, 75/14, 142/14, 73/18, 46/19, 86/19 and 62/21). The State’s statutory pension scheme in Serbia remains a typical example of the “Bismarck model” of earnings-related system with a defined-benefit public scheme financed on a “pay ‑ as ‑ you ‑ go” basis by means of social insurance contributions to the Pension Fund. Accordingly, current pensioners receive pension benefits that are financed from the contributions made by currently employed workers. A key feature of the new law was a shift from the traditional defined-benefit system to the German points system, with the aim of tightening the link between contributions and benefits – in particular extending the reference period from the ten years in which a person earned his or her highest wages to that person’s lifelong earnings [1] . 40.     Under the Pensions Act, pension and disability insurance is mandatory (Article 1). Unlike the voluntary private pension scheme, all employers and the working population (including all employees, self-employed persons and farmers), are obliged to pay contributions to the Pension Fund in an amount that is not freely decided but is determined by the Act on Mandatory Contributions to Social Insurance; the contribution rate currently stands at 25.5% of gross salary – 14.5% is paid by employees and 11% by employers (under Articles 2, 13 and 14 of that Act). An individual’s obligation to pay contributions ceases at “retirement age”, when individuals become entitled to and start receiving an old-age pension. Under the most recent amendments to the Pensions Act the retirement age is 65 years for men, while for women it is currently 63 (but will gradually rise by two months a year until reaching 65 in 2032; see paragraph 48 below), provided that they have paid contributions to the Pension Fund for at least fifteen years. Alternatively, both men and women may retire after working for forty-five years, regardless of their age (these rules do not apply to people working in certain categories of jobs and professions, who may retire earlier). 41 .     The rights and pension benefits deriving from pension-related contributions should be acquired, exercised and used in accordance with the terms and conditions determined by the Pensions Act. Old-age pensions, early old-age pensions, disability and survivor’s pensions may derive from pension and disability insurance. Old-age pensions are acquired and calculated according to a formula that takes into account the ratio of the level of gross earnings of the employee in question to the national average annual wage in each year in which contributions are paid (the personal and general coefficient – ukupne osnovice zarada za koje je plaćen doprinos za penzijsko i invalidsko osiguranje u odnosu sa prosečnom zaradom ) and the overall contribution period (up to forty-five years) (see Articles 5 and 61-73 of the Pensions Act). Pensions are not subject to taxation. 42 .     Under the Pensions Act, a ruling setting the amount of a person’s pension may be amended only in the event that (i) new relevant facts or evidence regarding the insured person in question become known that might result in a different outcome (that is, a higher or a lower pension), or (ii) such relevant facts or evidence were not presented in the original proceedings. 43.     Contributions partly fund both the Pension Fund and the National Health System ( Zdravstveni fond Srbije ) . The Pension Fund is the legal entity responsible for resource management and the administration of pensioners’ statutory obligations and rights. Under Article 169, its assets consist of: compulsory pension and disability insurance (social insurance) contributions; its own property; earmarked sums in (that is to say direct transfers from) the State’s central budget; subsidies and donations; returns on various investments; and a certain portion of the funds obtained through the privatisation of State-owned and socially-owned capital. Article 173 provides that the State guarantees the Pension Fund’s commitments concerning rights arising from mandatory pension and disability insurance. Permanent and temporary measures taken in respect of the State’s pension scheme between 2014 and 2020, and relevant statistical information 44.     The overall number of pensioners in Serbia currently stands at around 1,650,000 – almost a quarter of the whole population. The majority of pension beneficiaries (65.1%) are in receipt of an old-age pension, 14.8% claim a disability pension and 20.1% benefit from a survivor’s pension. In June 2022, the average old-age pension was RSD 30.974 (around EUR 260) per month. [2] A high proportion of pensioners apparently still receive the minimum level of benefits, and there is a need for a safety-net mechanism to keep these groups out of poverty. [3] 45 .     The pension system runs at a deficit, given that contributions are not sufficient to fully fund pension-related expenditure (see paragraph 46 below). Although the pension fund is separate from the State budget, the State nevertheless subsidises it. The level of expenditure on pensions should not exceed 11% of GDP (gross domestic product), and the State subsidy to be paid into the Fund is fixed by the annual Budget System Act ( Zakon o budžetskom sistemu , published in OG RS, nos. 54/09, 73/10, 101/10, 101/11, 93/12, 62/13, 63/13, 108/13, 142/14, 68/15, 103/15, 99/16, 113/17, 95/18, 31/19, 72/19, 149/20 and 118/21). 46 .     According to the available information, the deficit was high and the system apparently reached “historically high levels of expenditure” [4] in 2013 and 2014. [5] According to the information collected by the Constitutional Court from the Finance Ministry and Pension Fund, the deficit in Pension Fund’s revenue covered by the State’s budget was 44,59% in 2011, 48,22% in 2012, 44, 68% in 2013 and 41,86% in 2014. 47 .     The State authorities explained that, in order to respond to challenges such as the high budget deficit and rising public debt, and in order to ensure the stability of public finances and macroeconomic stability in general, they had to introduce several sets of permanent and temporary fiscal consolidation measures throughout 2014. 48 .     Firstly, the government introduced two permanent measures: (i)   the threat of penalties (in the form of lower pensions) to reduce early retirement, and (ii) a gradual increase in the retirement age for women between 2015 and 2032 until it reached 65 years – the same retirement age as that which applied to men (see paragraph 37 above). 49.     In July 2014, the government further temporarily discontinued the use of automatic pension indexation ( usklađivanje penzija ), which was based on consumer price growth, in favour of ad hoc adjustments – subject to budget availability – to pension payments until pension expenditure fell below 11% of GDP (the measure was facilitated by the temporary suspension of Article 80 of the Pensions Act by Article 2 of the Act on Amendments to the Pensions Act ( Zakon o izmenama i dopunama Zakona o penzijskom i invalidskom osiguranju , published in OG RS, no. 142/14)). 50 .     Crucially, on 26 October 2014 the National Assembly adopted the Pension Reduction Act, which imposed a progressive reduction in pension payments above RSD 25,000 per month as of November 2014 (see paragraph 7 above; for the full text of this Act, see paragraph 54 below). Apparently, 61.2% of all pensioners in 2014 received monthly pensions amounting to less than RSD 25,000. [6] 51 .     During the period in which the Pension Reduction Act was in force – and (according to the government) in accordance with the financial possibilities open to the State – the government introduced an increase in pensions as follows: (i) a 1.25% increase was applied as of December 2015, (ii) a 1.5% increase was applied as of December 2016, and (iii) a 5% increase was applied as of December 2017. The increase was, however, added to the pensions payments and subject to the reductions imposed by the Pension Reduction Act. Furthermore, on two occasions in November 2016 and November 2017 all recipients of pensions were granted one-time payments in the amount of RSD   5,000 (approximately EUR 42). 52 .     The temporary austerity measures came to an end in 2018 and 2019. Apparently as a result of the realisation of positive macroeconomic results and a reduction in total expenses and government subsidies between 2014 and 2018, on 27 September 2018 the Pension Reduction Act was repealed and replaced by the Act on Amendments to the Pensions and Disability Insurance Act (Article 53; Zakon o izmenama i dopunama Zakona o penzijskom i invalidskom osiguranju , published in OG RS, no.   73/18; part of the Act came into force on 30 September 2018, while Articles 6, 13, 16, 20-25, 27-29, 30 ‑ 33 and 38 came into force on 1 January 2019), which ended the temporary reduction in pension payments. According to the information provided by the Government, a considerable savings of RSD 98,9 billion (around EUR   840   million) was made as a result of the pension reduction during the relevant period (see paragraph 75 below). 53 .     A further Act on Amendments to the Pensions and Disability Insurance Act ( Zakon o izmenama i dopunama Zakona o penzijskom i invalidskom osiguranju, published in OG RS, no. 86/19), which came into force on 1 January 2020, reintroduced pension indexation based on the Swiss formula, which indexes pension benefits once a year according to 50% of inflation and 50% of average wage growth ( penzije se uskladjuju u procentu koji predstavlja zbir polovine procenta promene potrošačkih cena i polovine procenta promene prosečne zarade bez poreza i doprinosa ). Act on the Temporary Regulation of the Manner of Paying Pensions 54 .     The Pension Reduction Act provides: Article 1 This Act prescribes the manner of payment of pensions by the Pension Fund, starting with the pensions due as of November 2014, with the aim of preserving the financial sustainability of the pension system in the Republic of Serbia. Article 2 Pension beneficiaries whose [monthly] pension, as determined in accordance with the law, is above RSD 25,000 and less than RSD 40,000 should be paid an amount determined by deducting from the full pension [entitlement] an amount determined by multiplying the coefficient of 0.22 by the difference between RSD 25,000 and the total amount of the pension. Article 3 Pension beneficiaries whose [monthly] pension, as determined in accordance with the law, exceeds RSD 40,000 should be paid a pension in an amount determined by deducting from the full pension [entitlement] the total amount [calculated] by multiplying the coefficient of 0.22 by RSD 15,000 and the amount determined by multiplying the coefficient of 0.25 by the difference between the total pension and RSD   40,000. Article 4 Pension payments calculated in accordance with this Act should be considered as final. Article 5 The payment of pensions in the manner provided by Articles 2 and 3 should apply to both current and future pension beneficiaries. Article 5a [as added in 2016] Sums determined by Articles 2 and 3 of this Act amounting to RSD 15,000, RSD   25,000 and RSD 40,000 shall be increased, starting from the calculation and the payment of pensions of December 2016, by the percentage of pension adjustments determined by the law governing the budget system. Article 6 The Act shall enter into force on the day following the day of its publication in the Official Gazette of the Republic of Serbia. THE LAW PRELIMINARY REMARKS AS REGARDS APPLICATIONS NOS.   7697/16, 7705/16, 20743/16 AND 21856/16 55 .     Having regard to the circumstances described above (see paragraph 22), the Court considers that the fourth applicant may be regarded as no longer wishing to pursue her application, within the meaning of Article   37   §   1   (a) of the Convention. In accordance with Article   37   §   1   (a) of the Convention, the Court considers that it is no longer justified to continue the examination of application no.   7697/16. 56.     The Court notes that the fifth and eighth applicants have died and that no request has been submitted by any of their respective heirs to pursue the examination of either case (see paragraphs 18-21 above). Given these circumstances, the Court concludes that it is no longer justified to continue the examination of applications nos. 7705/16 and 20743/16 within the meaning of Article 37 § 1 (c) of the Convention. 57 .     Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights, as defined in the Convention and its Protocols, which require the continued examination of the above-noted applications. Accordingly, applications nos. 7697/16, 7705/16 and 20743/16 should be struck out of the Court’s list of cases. 58.     Regarding application no. 21856/16, the Government invited the Court to strike it out of the Court’s list of cases, given that (i) pension rights are not transferable, and (ii) from the documents submitted by the legal representative, it could not be concluded without any doubt that Ms L.B. was the actual heir of the late ninth applicant (see paragraph 23 above). 59.     However, the Court does not consider it necessary to examine separately the Government’s objection to the locus standi of Ms L.B. to pursue the ninth applicant’s application in the present case given the conclusions which it reaches below (see paragraph 105 below). JOINDER OF THE REMAINING APPLICATIONS 60.     Having regard to their common factual and legal background, the Court finds it appropriate to examine the remaining applications jointly in a single decision (Rule 42 § 1 of the Rules of Court). ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1, BOTH ALONE AND IN CONJUCTION WITH ARTICLE 14 OF THE CONVENTION, AND ARTICLE 1 OF PROTOCOL NO. 12 61.     All the remaining applicants complained under Article 1 of Protocol   No. 1 to the Convention that the reduction in the payment of their pensions had amounted to a deprivation of property that had unjustifiably breached their right to the peaceful enjoyment of their property. In particular, they asserted that (i) the reduction in pension payments provided by the Act had itself amounted to a violation of their property rights, referring to “acquired” rights ( stečena prava) ; (ii) the Act had run counter to fundamental constitutional principles, international treaties and the Pensions Act; (iii) although the Act had been presented as temporary legislation, the period for which it would remain in force had not been set at the time of its enactment; and (iv) the calculations resulting from the Act had been arbitrary and not dictated by any economic factors. 62 .     Relying on Article 14 of the Convention read in conjunction with Article   1 of Protocol No. 1 and/or Article 1 of Protocol No. 12, the second, third and eleventh applicants complained of the discriminatory way in which they had been treated in comparison to other pensioners to whom the reduction in pension benefits had not applied or had applied only to a lesser extent. 63.     The first, ninth and eleventh applicants lastly complained under Article 13 that, as a result of the direct application of the Act and the unlawful absence of individual decisions regarding the reduced pensions, they had been prevented from pursuing their claims before domestic administrative authorities and/or civil courts. 64.     As master of the characterisation to be given in law to the facts of the case before it (see, for example,   Radomilja and Others v. Croatia   [GC], nos.   37685/10   and   22768/12, §§ 114 and 126, 20 March 2018),   the Court considers that the applicants’ complaints fall to be examined under Article   1 of Protocol No. 1, both alone, in respect of all applicants, and in conjunction with Article 14 of the Convention, and under Article 1 of Protocol No. 12 in respect of the second, third and eleventh applicants only; those provisions read as follows: 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. 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.” Article 14 “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.” Article 1 of Protocol No. 12 “1.     The enjoyment of any right set forth by law 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. 2.     No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” The parties’ submissions The applicants 65 .     The applicants firstly argued that the Government had violated Article   1 of Protocol No. 1 because depriving them of the “acquired right to an old-age pension” ( stečeno pravo na starosnu penziju) , in respect of the pensions that had been reduced in the period from 1 November 2014 until 1   October 2018, had been in contravention of international treaties that the State had ratified, the Constitution and the Pensions Act, which had remained in force the whole time. The Government’s main argument that the reduction had been introduced by law, namely the Pension Reduction Act (see paragraph 54 above), should not be accepted as sufficient for a measure to be considered constitutional and legal. Under the Constitution and the relevant domestic laws, the pension entitlements in question had constituted acquired rights ( stečena prava ) and could not be lawfully revoked or suspended except in cases provided by the Pensions Act (see paragraph 42 above). The applicants sub