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SECOND
SECTION
CASE OF RAKIĆ and OTHERS v. SERBIA
(Applications
nos. 47460/07, 49257/07, 49265/07, 1028/08, 11746/08, 14387/08,
15094/08, 16159/08, 18876/08, 18882/08, 18997/08, 22997/08, 23007/08,
23100/08, 23102/08, 26892/08, 26908/08, 29305/08, 29306/08, 29323/08,
29389/08, 30792/08, 30795/08, 31202/08, 31968/08, 32120/08, 32537/08,
32661/08, 32666/08 and 36079/08)
JUDGMENT
STRASBOURG
5
October 2010
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 Rakić
and Others v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
Kristina
Pardalos,
Guido
Raimondi,
judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 14 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in thirty separate applications (nos. 47460/07,
49257/07, 49265/07, 1028/08, 11746/08, 14387/08, 15094/08, 16159/08,
18876/08, 18882/08, 18997/08, 22997/08, 23007/08, 23100/08, 23102/08,
26892/08, 26908/08, 29305/08, 29306/08, 29323/08, 29389/08, 30792/08,
30795/08, 31202/08, 31968/08, 32120/08, 32537/08, 32661/08, 32666/08
and 36079/08) lodged with the Court against Serbia, under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”), by Mr Slobodan Rakić
and 29 others (“the applicants”; see paragraph 5 below)
on 22 October 2007, 6 November 2007, 6 November 2007, 24
December 2007, 29 February 2008, 15 March 2008, 20 March 2008, 25
March 2008, 7 April 2008, 7 April 2008, 7 April 2008, 16 April 2008,
16 April 2008, 16 April 2008, 16 April 2008, 26 May 2008, 24 May
2008, 9 June 2008, 9 June 2008, 9 June 2008, 9 June 2008, 19 June
2008, 19 June 2008, 19 June 2008, 23 June 2008, 23 June 2008, 1 July
2008, 1 July 2008, 1 July 2008 and 1 July 2008, respectively.
- The
applicants were represented before the Court by Mr N. Vukotić,
a lawyer practising in Belgrade, and the Government of Serbia (“the
Government”) were represented by their Agent, Mr S. Carić.
- The
applicants complained about the flagrantly inconsistent case-law of
the domestic courts concerning the payment of the same salary
increase granted to a certain category of police officers.
- On
12 June 2009 the Court decided to communicate the applications to the
Government. Applying Article 29 § 3 of the Convention, it also
decided to rule on their admissibility and merits at the same time.
THE FACTS
- The
applicants, Mr Slobodan Rakić (“the first applicant”),
Mr Zivorad Ivković (“the second applicant”), Mr
Damjan Šapić (“the third applicant”), Mr
Dragan Jevtić (“the fourth applicant”), Mr Darko
Glišović (“the fifth applicant”), Mr Radoš
Mihajlović (“the sixth applicant”), Mr Ljubiša
Janićijevic (“the seventh applicant”), Mr Nenad
Jovanović (“the eight applicant”), Mr Milan Vitković
(“the ninth applicant”), Mr Velibor Terentić (“the
tenth applicant”), Mr Radojko Radosavljević (“the
eleventh applicant”), Mr Dragoš Tomović (“the
twelfth applicant”), Mr Predrag Todić (“the
thirteenth applicant”), Mr Nebojša Milutinović
(“the fourteenth applicant”), Mr Bojan Ilić (“the
fifteenth applicant”), Mr Darko Trifunović (“the
sixteenth applicant”), Mr Janko Janković (“the
seventeenth applicant”), Mr Dragiša Zdravković
(“the eighteenth applicant”), Mr Miljojko Đorđević
(“the nineteenth applicant”), Mr Slavko Milošević
(“the twentieth applicant”), Mr Miroslav Vučković
(“the twenty-first applicant”), Mr Ljubinko Ćirković
(“the twenty-second applicant”), Mr Veselin BoZović
(“the twenty-third applicant”), Mr Nebojša
Đorđević (“the twenty-fourth applicant”),
Mr Srećko Janićijević (“the twenty-fifth
applicant”), Mr Siniša Milić (“the
twenty-sixth applicant”), Mr Vladimir Avdalović (“the
twenty-seventh applicant”), Mr Slavoljub Vukić (“the
twenty-eighth applicant”), Mr Rodoljub Obradović (“the
twenty-ninth applicant”) and Mr Dejan Pantić (“the
thirtieth applicant”) are all Serbian nationals.
I. THE CIRCUMSTANCES OF THE CASE
- All
applicants are employed as police officers with the Ministry of
Internal Affairs of the Republic of Serbia (Ministarstvo
unutrašnjih poslova
Republike Srbije, hereinafter “the Ministry”). They
reside and work in Kosovo.
- The
facts, as submitted by the applicants, may be summarised as follows.
- On
24 January 2000 and 17 July 2003, respectively, the Serbian
Government adopted two decisions whereby, inter alia, all of
its employees who resided and worked in Kosovo were to be paid double
salaries.
- On
31 January 2000 the Ministry issued a decision stating that the
police officers in question were entitled to have their salaries
increased based on a coefficient of 2.5 or 4.5, depending on the
circumstances.
- In
reality, the applicants only received the increase approved by the
Ministry, amounting to significantly less than the envisaged doubling
of their salaries.
- In
2006 and 2007, therefore, they filed separate civil claims against
the Ministry with the First Municipal Court (Prvi
opštinski sud) in Belgrade, seeking payment of the
difference between the salary increase received and the one granted
by the Government (the value of the seventh, thirteenth, seventeenth,
twentieth, twenty-seventh and twenty-eighth applicants' claims,
respectively, exceeded 500,000 dinars, whilst the claims of all other
applicants were below this threshold). The applicants further
requested payment of unspecified amounts on account of the related
pension and disability insurance contributions.
- Certain
applicants were successful before the Municipal Court; others were
not. However, all the applicants were unsuccessful at second instance
before the District Court (OkruZni
sud) in Belgrade (hereinafter “the District Court”).
The applicants received those decisions on the following dates:
- the
first applicant on 26 April 2007;
- the
second and third applicants on 7 May 2007;
- the
fourth applicant on 26 June 2007;
- the
fifth applicant on 3 September 2007;
- the
sixth applicant on 19 September 2007;
- the
seventh applicant on 1 October 2007;
- the
eighth applicant on 26 September 2007;
- the
ninth, tenth and eleventh applicants on 8 October 2007;
- the
twelfth applicant on 16 October 2007;
- the
thirteenth and fourteenth applicants on 29 October 2007;
- the
fifteenth applicant on 19 October 2007;
- the
sixteenth, nineteenth and twenty-first applicants on 11 December
2007;
- the
seventeenth applicant on 26 November 2007;
- the
eighteenth applicant on 17 December 2007;
- the
twentieth applicant on 13 December 2007;
- the
twenty-second applicant on 15 January 2008;
- the
twenty-third applicant on 25 January 2008;
- the
twenty-fourth and twenty-eighth applicants on 11 February 2008;
- the
twenty-fifth applicant on 28 February 2008;
- the
twenty-sixth applicant on 27 December 2007;
- the
twenty-seventh and thirtieth applicants on 20 February 2008;
- the
twenty-ninth applicant on 18 February 2008.
Many
of the applicant's colleagues (hereinafter “the plaintiffs”)
had brought separate claims concerning the same issue; some were
successful whilst others were unsuccessful in the District Court.
- In
its reasoning in the applicants' cases, the District Court held,
inter alia, that the applicable domestic regulation was
contained in the decision of the Ministry adopted on 31 January 2000.
- However,
in seventy-three other judgments, rendered between 25 January
2006 and 1 October 2008, the same District Court ruled in favour of
the plaintiffs, notwithstanding the fact that their claims were based
on the same facts and concerned identical legal issues. In its
reasoning in these other cases, the District Court held, inter
alia, that the plaintiffs' salaries had to be paid in accordance
with the Serbian Government's decisions of 24 January 2000 and/or 17
July 2003.
- Of
the seventy-three judgments mentioned above, in fifty cases the
respondent lodged appeals on points of law (revizije) with the
Supreme Court (Vrhovni sud Srbije, see paragraphs 24 and 27
below). In the remaining twenty-three cases, however, the respondent
lodged no such appeal, apparently in the light of the statutory
threshold (see paragraph 25 below).
- The
Government provided relevant case-law adopted by the Supreme Court,
in particular six separate judgments of which one was issued on 3
July 2008 and the remaining five between 25 December 2008 and 1
October 2009. In each case, deciding upon appeals on points of law,
the Supreme Court ruled against the plaintiffs, albeit with somewhat
different reasoning compared to that employed by the District Court.
In particular, the Supreme Court held, inter alia, that the
Government's decision of 17 July 2003 had not been directly
applicable.
- In
the meantime, on 23 September 2008, the Civil Division (Građansko
odeljenje) of the Supreme Court held a meeting which was meant to
resolve the issue of how to rule in all cases such as the applicants'
(see paragraph 29 below). In the minutes of this meeting, it was
noted inter alia that in two cases registered in 2008, where
appeals on points of law had been considered, the Supreme Court had
in fact confirmed the lower courts' rulings rendered in favour of the
plaintiffs (Rev II 429/08 and Rev 623/08). The meeting,
however, was ultimately adjourned pending the outcome of a case which
had been brought before the Constitutional Court (Ustavni sud
Srbije) concerning the abstract review of the constitutionality
of the Government's decision adopted on 17 July 2003. On 16 April
2010 the Constitutional Court held that the impugned decision was
unconstitutional.
- In
eighteen separate cases the plaintiffs thereafter lodged their
appeals with the Constitutional Court (ustavne Zalbe), but,
according to the information contained in the case file, these
proceedings are all still pending.
- None
of the applicants lodged an appeal on points of law or attempted to
obtain constitutional redress.
II. RELEVANT DOMESTIC LAW
A. Provisions concerning the constitutional appeal
procedure
- The relevant provisions in this
respect are set
out in the Vinčić and Others v. Serbia
judgment (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, §§ 22-34, 1
December 2009).
B. The Civil Procedure Act 2004 (Zakon o parničnom
postupku; published in the Official Gazette of the Republic of Serbia
- OG RS - no. 125/04)
- Article
2 § 1 provides, inter alia, that all parties shall be
entitled to the equal protection of their rights.
- Articles
355-384 provide details as regards an appeal which may be filed
against a judgment rendered at first instance (Zalba).
Article 355 § 1, in particular, provides that such an appeal
must be filed within a period of fifteen days.
- Article
438, however, provides that an appeal (Zalba) in a labour
dispute must be filed within a period of eight days.
- Articles 394 § 1, 396 and 398 provide that
parties may file an appeal on points of law (revizija) with
the Supreme Court. They may do so within a period of 30 days
following receipt of a final decision rendered at second instance,
and only if the relevant legislation, procedural or substantive, has
been breached by the lower courts.
- Article
394 § 2 provides, inter alia, that an appeal on points of
law is “not admissible” in pecuniary disputes (kad se
tuZbeni zahtev odnosi na
potraZivanje u novcu) where the “value of the part of the
final judgment being contested” does “not exceed 500,000
dinars”.
- Article
439 provides that an appeal on points of law shall be admissible in
labour cases which concern one's hiring or dismissal or the
“existence” of one's employment (u parnicama o
sporovima o zasnivanju, postojanju i prestanku radnog odnosa)
- In
accordance with Articles 396 and 406-409, inter alia, the
Supreme Court shall, should it accept an appeal on points of law
lodged by one of the parties concerned, have the power to overturn
and/or amend the impugned judgment or quash it and order a re-trial
before the lower courts.
- Article
422.10 provides that a case may be re-opened if the European Court of
Human Rights has in the meantime rendered a judgment in respect of
Serbia concerning the same or a similar legal issue.
C. The Court Organisation Act (Zakon o uređenju
sudova; published in OG RS nos. 63/01, 42/02, 27/03, 29/04, 101/05
and 46/06)
- Article
40 §§ 2 and 3 provides, inter alia, that a meeting
of a division (sednica odeljenja) of the Supreme Court shall
be held if there is an issue as regards the consistency of its
case-law. Any opinions (pravna shvatanja) adopted thereupon
shall be binding for all panels (veća) of the division in
question.
THE LAW
I. JOINDER OF THE APPLICATIONS
- The
Court considers that, in accordance with Rule 42 § 1 of the
Rules of Court, the applications should be joined, given their
similar factual and legal background.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Under
Article 6 § 1 of the Convention, the applicants complained about
the flagrantly inconsistent case-law of the District Court in
Belgrade.
- The
relevant provisions of the said Article read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Admissibility
1. The parties' arguments
- The
Government maintained that the applicants had not exhausted all
effective domestic remedies within the meaning of Article 35 § 1
of the Convention. In particular, they had all failed to lodge a
constitutional appeal, whilst the seventh, thirteenth, seventeenth,
twentieth, twenty-seventh and twenty-eighth applicants had also not
made use of an appeal on points of law provided under Article 394 §
2 of the Civil Procedure Act (see paragraphs 11, 25 and 27 above).
- The
applicants submitted that, in view of Article 439 of the Civil
Procedure Act, an appeal on points of law was only available in
respect of specified labour-related disputes, not in cases such as
theirs involving salary arrears (see paragraph 26 above). They
further noted that the judgments rendered by the First Municipal
Court contained instructions to the effect that the parties could
lodge an appeal against them within a period of eight rather than
fifteen days (see paragraphs 22, 23 and 26 above), thus implying that
the said court had itself considered their cases as labour-related
and excluded the application of Article 394 § 2 of the Civil
Procedure Act.
- As
regards the constitutional appeal, the applicants argued that this
remedy had not been effective at the relevant time.
- Lastly,
the Government added, concerning Article 394 § 2 of the Civil
Procedure Act, that the applicants' cases were clearly of a pecuniary
nature and that the domestic courts had consistently deemed them as
such. The eight day deadline for the submission of an appeal was
hence of no particular relevance, especially given that the First
Municipal Court had given the suits in question a “P”
rather than a “P1” registration number (the former
indicating pecuniary disputes) and that the Supreme Court itself had
routinely accepted to consider appeals on points of law in cases such
as the applicants whenever the statutory threshold had been exceeded
(see paragraphs 15 and 16 above).
2. The Court's assessment
(a) As regards the seventh, thirteenth,
seventeenth, twentieth, twenty-seventh and twenty-eighth applicants
- The
Court considers that, given its nature, an appeal on points of law
must, in principle and whenever available in accordance with the
relevant civil procedure rules, be considered an effective domestic
remedy within the meaning of Article 35 § 1 of the Convention
(see paragraphs 24-27 above; see also Jevremović v. Serbia,
no. 3150/05, § 41, 17 July 2007; Ilić v. Serbia,
no. 30132/04, §§ 20 and 21, 9 October 2007; and, mutatis
mutandis, Debelić v. Croatia,
no. 2448/03, §§ 20 and 21, 26 May 2005).
- In
the specific circumstances of the present case, however, the Court is
of the opinion that the exhaustion issue raised by the Government in
respect of the said six applicants is closely linked to the merits of
their complaints. In particular, it involves the question of whether
an appeal on points of law, even if available (see paragraphs 25 and
26 above) and made use of, could have secured consistency in the
adjudication of the claims at issue (see paragraphs 16 and 17 above).
Consequently, the Court joins its examination of this question to its
assessment of the merits of the applicants' complaints.
(b) As regards all applicants
- The Court has already held that a constitutional
appeal should, in principle, be deemed effective within the meaning
of Article 35 § 1 of the Convention in respect of all
applications introduced as of 7 August 2008 (see Vinčić
and Others v. Serbia, cited above, § 51). Since the
applicants in the present case had all brought their cases before
that date and given that it finds no reason to depart from its
conclusion in Vinčić, the Court considers that the
Government's objection in this regard must be dismissed.
(c) Conclusion
- The
Court notes that the applicants' complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other ground. They must therefore be declared admissible.
B. Merits
- The
applicants re-affirmed their submissions, adding that the Supreme
Court had ignored its own decision of 23 September 2008 and proceeded
to rule against the plaintiffs despite the fact that the
Constitutional Court had yet to decide on the constitutionality
and/or legality of the Government's decision of 17 July 2003 (see
paragraph 17 above).
- The
Government maintained that there had been no violation of the
Convention. They noted that the domestic courts were independent in
dispensing justice and that it was up to them to interpret and apply
the relevant domestic legislation, which in the applicants' cases
they had done correctly. Further, the inconsistency alleged by the
applicants did not relate to any prior systemic and/or grave
injustice nor did it involve the Supreme Court's case-law since this
court had, just like the District Court in the applicants' cases,
consistently ruled against the plaintiffs. Lastly, the Government
argued that the Supreme Court had not been formally bound to await
the outcome of any proceedings before the Constitutional Court and
had to be mindful of, inter alia, the Convention requirement
to conclude the suits in question within a reasonable period of time.
- The Court recalls that whilst certain divergences in
interpretation could be accepted as an inherent trait of any judicial
system which, just like the Serbian one, is based on a network of
trial and appeal courts with authority over a certain territory, in
the applicants' cases the conflicting interpretations stemmed from
the same jurisdiction, i.e. the District Court in Belgrade, and
involved the inconsistent adjudication of claims brought by many
persons in identical situations (see Vinčić and Others
v. Serbia, cited above, § 56; see also, mutatis mutandis,
Tudor Tudor v. Romania, no. 21911/03, § 29, 24 March
2009). All this created a state of continued uncertainty, which in
turn must have reduced the public's confidence in the judiciary, such
confidence, clearly, being one of the essential components of a
State-based on the rule of law. Further, notwithstanding the
Governments submission to the contrary, it would appear that even the
Supreme Court's case-law on the matter had not effectively become
consistent until, at best, the latter part of 2008 (see paragraphs 16
and 17 above), which was well after some of the applicants could have
attempted to lodge their respective appeals on points of law (see
paragraphs 12 and 24 above), whilst formally this consistency had
apparently never been secured in accordance with Article 40 of the
Court Organisation Act (see paragraphs 17 and 29 above). Or, in other
words, it could not reasonably be argued that, irrespective of the
fact that the applicants' claims had never been considered by the
Supreme Court at third instance, their suits had nevertheless
substantively been determined in a manner consistent with that
court's settled case-law (see, mutatis mutandis, Iordan
Iordanov and Others v. Bulgaria, no. 23530/02, § 47, 2 July
2009).
- In
view of the foregoing and without deeming it appropriate to pronounce
as to what the actual outcome of the applicants' suits should have
been (see Vinčić and Others v. Serbia, cited above,
§ 56), the Court dismisses the Government's preliminary
objection and considers that the judicial uncertainty in question
deprived the applicants of a fair hearing before the District Court
in Belgrade. There has consequently been a violation of Article 6 §
1 on this account (see, mutatis mutandis, Tudor Tudor v.
Romania, cited above, § 32).
III. APPLICATION OF 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.”
A. Damage
- The
applicants claimed EUR 10,000 each for the total damage suffered as a
result of a violation of their rights guaranteed under Article 6 §
1 of the Convention.
- The
Government contested those claims.
- Having
regard to the violation found in the present case and its reasons for
so doing (see paragraph 44 above, particularly the reference to the
outcome of the applicants' suits), the Court considers that the
applicants' claims, in so far as they relate to the payment of the
respective sums sought domestically, must be rejected (see Vinčić
and Others v. Serbia, cited above, § 61).
- The
Court, however, takes the view that the applicants have suffered some
non-pecuniary damage as a result of the violation found which cannot
be made good by the Court's mere finding of a violation (see, mutatis
mutandis, Tudor Tudor v. Romania, cited above, § 47).
Making its assessment on an equitable basis, as required by Article
41 of the Convention, the Court therefore awards each applicant EUR
3,000 under this head.
B. Costs and expenses
- Each
applicant also claimed EUR 250 for the application giving rise to the
proceedings before the Court, as well as EUR 250 for the submission
of their joint written observations and the related postal and office
expenses.
- The
Government contested those claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
also reasonable as to their quantum. In the present case, regard
being had to the documents in its possession and the above criteria,
the Court considers it reasonable to award each applicant EUR 255 for
their costs and expenses incurred in connection with their Strasbourg
case.
C. Default interest
- The
Court considers it appropriate that the 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;
- Decides to join to the merits the Government's
objection as to the non-exhaustion of domestic remedies, in so far as
it concerns an appeal on points of law, and dismisses it;
- Declares the applications admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay each applicant, within three months
from the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, the following
sums, to be converted into Serbian dinars at the rate applicable on
the date of settlement:
(i) EUR
3,000 (three thousand euros) in respect of the non-pecuniary damage
suffered, plus any tax that may be chargeable,
(ii) EUR
255 (two hundred and fifty-five euros) for costs and expenses, plus
any tax that may be chargeable to each applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 5 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens
Registrar President
