CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 juin 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s7ED160F0 { text-decoration:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF56D0168 { font-family:Arial; color:#20335d } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     Communicated on 25 June 2014   THIRD SECTION Application no. 52210/09 Ibrahim JAHJAGA against Serbia lodged on 28 September 2009 STATEMENT OF FACTS 1.     The applicant, Mr Ibrahim Jahjaga, is a Serbian national who was born in 1946. He is of Albanian ethic origin and lives in Kosovo [1] . The applicant is represented before the Court by Mr T. Bokshi, a lawyer practising in Kosovo. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     By 1990 a certain A.A., with a formally registered residence in Kosovo, had two foreign currency accounts with the Jugobanka AD branch in Kosovo. 4.     Following the financial collapse of numerous banks in Serbia, in 1998 and 2002 the Serbian State adopted specific legislation accepting to convert the foreign currency deposits in these banks, including the bank here at issue, into a 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 (see paragraphs 9-16 below). 5.     As of 2002, A.A. appears to have had 34,067.07 Euros in one account and 40,857.37 Euros in the other. These funds, however, apparently belonged to the applicant, who was related to A.A., and were deposited on the latter’s bank accounts as part of a mutual arrangement concerning the future schooling of the applicant’s children. 6.     In 2004, based on a court-certified document, A.A. formally transferred all of his rights concerning the foreign currency savings in question to the applicant. 7.     That same year the Serbian authorities adopted a decree stating that all persons with foreign currency savings in the said bank shall have the same rights as other savers, providing they can prove that they were resident in Serbia on 4 July 2002 and are Serbian taxpayers (see paragraphs 17 and 18 below). 8.     Being a resident of Kosovo, the applicant is currently not a Serbian taxpayer. As of 2004, however, both A.A. and the applicant have had Serbian citizenship and would appear not to have renounced it thereafter. B.     Relevant domestic law 1.     The Act on the Settlement of Obligations Arising from the Citizens’ Foreign Currency Savings 1998 (Zakon o izmirenju obaveza po osnovu devizne štednje građana; published in the Official Gazette of the Federal Republic of Yugoslavia – OG FRY – nos. 59/98, 44/99 and 53/01) 9.     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 debts. 10.     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. 11.     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 regulisanju javnog duga Savezne Republike Jugoslavije po osnovu devizne štednje građana; published in OG FRY no. 36/02) 12.     This Act repeals the Act described in paragraphs 9-11 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. 13.     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. 14.     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. 15.     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.” 16.     This Act entered into force on 4 July 2002. 3. The Decree concerning the foreign currency savings deposited with Jugobanka Jugbanka AD in Kosovska Mitrovica (Uredba o bližim uslovima i načinu ispalte devizne štednje građana položene kod Jugobanke Jugbanke AD Kosovska Mitrovica; published in the Official Gazette of the Republic of Serbia – OG RS – no. 37/04) 17.     Article 2 provides, inter alia , that persons who had foreign currency savings with the Jugobanka AD branch in Kosovska Mitrovica shall have the rights set out under the Act described in paragraphs 12-16 above, providing they can prove that they were resident in Serbia on 4 July 2002 and are Serbian taxpayers. 18.     This decree entered into force on 7 April 2004. 4.     The Constitution of the Republic of Serbia (Ustav Republike Srbije; published in OG RS no. 98/06) 19.     Article 167 § 1, inter alia , provides that the Constitutional Court shall decide about “the compliance of laws and other general acts [ opštih akata ] with the Constitution, universally accepted rules of international law and ratified international treaties”, as well as “the compliance of other general acts with the laws.” 20.     Article 168 provides, inter alia , that the proceedings for the assessment of constitutionality and legality may formally be brought by government bodies, local authorities, or a group of at least twenty-five members of the Serbian Parliament. Others may only file a “motion” proposing ( mogu podneti inicijativu ) that such proceedings be instituted by the Constitutional Court, but cannot bring a case directly and in their own right. Should the Constitutional Court find a breach in respect of an impugned “law or another general act”, including a decree, the provisions thereof shall cease to be in force as of the date of publication of the Constitutional Court’s decision in the Official Gazette of the Republic of Serbia. 21.     Article 170 provides that “a constitutional appeal may be lodged against individual decisions or actions 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.” 5.     The Constitutional Court Act (Zakon o Ustavnom sudu; published in OG RS no. 109/07) 22.     Article 53 provides, inter alia , that when a motion has been filed under Article 168 of the Constitution, the Constitutional Court shall either reject it or adopt a separate decision formally instituting the proceedings. In either case it has been the practice of the Constitutional Court to provide the person concerned with a reasoned decision substantively addressing his or her proposals. COMPLAINT 23.     The applicant, relying on Article 1 of Protocol No. 1, essentially complains about the discriminatory refusal of the Serbian authorities to release any and all of his foreign currency savings together with the interest due. QUESTIONS TO THE PARTIES 1.     May the applicant claim to be a victim of a violation of the Convention and/or Protocol No. 1, within the meaning of Article 34? In particular, have the foreign currency accounts in Jugobanka AD been formally transferred from A.A. to the applicant, as the accounts’ holder, at any point in 2004 or thereafter (see paragraph 6 of the attached draft)? The parties are further invited to inform the Court whether A.A. was a resident of Serbia on 4 July 2002 and is currently a Serbian tax payer (see paragraphs 17 and 18 of the attached draft)? 2.     Could an appeal provided for under Article 170 of the Serbian Constitution 2006 ( ustavna žalba ) or a motion ( inicijativa za ocenu ustavnosti i zakonitosti ) envisaged under Article 168 thereof, in a case such as the applicant’s, 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. 3.     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 applicant has been denied any and all access to this foreign currency savings? 4.     Has the applicant suffered discrimination on the basis of his residence and/or tax status contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 (see, in particular, the Government’s decree described in paragraphs 17 and 18 of the attached draft)?   [1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.