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SECOND
SECTION
CASE OF VINČIĆ and OTHERS v. SERBIA
(Application
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)
JUDGMENT
STRASBOURG
1 December
2009
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 Vinčić and Others v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
Sally Dollé, Section
Registrar,
Having
deliberated in private on 10 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in thirty-one separate applications (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) lodged with the Court against Serbia, under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”), by Ms Aleksandra
Vinčić and 30 others (“the applicants”; see
paragraph 5 below) on 26 October 2006, 27 October 2006, 27 October
2006, 27 October 2006, 4 December 2006, 6 December 2006, 18 December
2006, 21 December 2006, 21 December 2006, 11 January 2007, 11 January
2007, 15 January 2007, 2 February 2007, 6 February 2007, 30 January
2007, 19 February 2007, 1 March 2007, 8 March 2007, 21 March
2007, 20 March 2007, 4 May 2007, 4 May 2007, 4 May 2007, 4 May
2007, 28 May 2007, 15 November 2007, 30 October 2007, 28 December
2007, 28 December 2007, 4 July 2007 and 8 October 2007, respectively.
- The
applicants were represented before the Court by Mr J. Kosić,
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 District Court (OkruZni
sud) in Belgrade concerning the payment of the same
employment-related benefit.
- On
24 September 2008 and 14 October 2008 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, Ms Aleksandra Vinčić (“the first
applicant”), Mr Damir Matić (“the second
applicant”), Ms Dušica Obradović (“the third
applicant”), Mr Aleksandar KrZić (“the fourth
applicant”), Mr Ljubomir BoZić (“the fifth
applicant”), Mr Zoran Radonjić (“the sixth
applicant”), Ms Ljiljana Savić (“the seventh
applicant”), Ms Aleksandra Rosić (“the eighth
applicant”), Mr Jovo Grbić (“the ninth applicant”),
Mr Mirko Maljković (“the tenth applicant”), Mr Milan
Vukelić (“the eleventh applicant”), Mr Jovan
Milić (“the twelfth applicant”), Mr Jovan Jovanović
(“the thirteenth applicant”), Mr Milutin Jovanović
(“the fourteenth applicant”), Mr Nenad Jovanović
(“the fifteenth applicant”), Mr Zoran Korica (“the
sixteenth applicant”), Ms Dara Đorđević
Halapir (“the seventeenth applicant”), Ms Vera Vasović
(“the eighteenth applicant”), Mr Drago Tumbas (“the
nineteenth applicant”), Mr Dobrivoje Dunjić (“the
twentieth applicant”), Mr Svetozar Munćan (“the
twenty-first applicant”), Mr Rade Savić (“the
twenty-second applicant”), Mr Dragan Udović (“the
twenty-third applicant”), Mr Milutin Milunov (“the
twenty-fourth applicant”), Mr Predrag Stamenović (“the
twenty-fifth applicant”), Mr Zoran Babić (“the
twenty-sixth applicant”), Mr Slobodan Pejić (“the
twenty-seventh applicant”), Mr Mirko Novaković (“the
twenty-eighth applicant”), Mr Radoje Đukić
(“the twenty-ninth applicant”), Mr Zoran Zivković
(“the thirtieth applicant”) and Mr Miodrag Lopičić
(“the thirty-first applicant”) are all Serbian nationals.
I. THE CIRCUMSTANCES OF THE CASE
- The
facts, as submitted by the parties, may be summarised as follows.
- The
applicants were all members of the Independent Union of Aviation
Engineers of Serbia (Samostalni sindikat inZenjera vazduhoplovstva
Srbije).
- Following
a strike, on 28 November 2004 their union and their employer, JAT
Airways, concluded an agreement whereby the latter accepted to pay
all union members a certain benefit while the former promised to
discontinue the strike and refrain from any legal action.
- On
29 November 2004 the Director General of JAT Airways, a public
corporation founded by the respondent State, ordered that the
necessary calculations be made and the payment of the benefit be
effected immediately.
- Since
this decision would appear not to have been implemented, on
7 February 2005 the applicants, as part of a group of 151
persons, filed a single civil claim against JAT Airways with the
Fourth Municipal Court (Četvrti
opštinski sud) in Belgrade, seeking payment of the benefit
in question (ranging from several hundred up to approximately one
thousand Euros, “EUR”, respectively).
- The
total number of plaintiffs subsequently dropped to 140. The Fourth
Municipal Court thereafter decided to separate the proceedings for
each of the remaining plaintiffs, and ordered them to re-submit their
individual claims. The plaintiffs, including the applicants,
complied.
- Certain
applicants were successful before the Fourth Municipal Court; others
were not. However, all the applicants were unsuccessful at
second-instance before the District Court in Belgrade whose decisions
they received on the following dates:
- the
first applicant on 27 September 2006;
- the
second applicant on 13 July 2006;
- the
third and fourth applicants on 13 September 2006;
- the
fifth applicant on 17 November 2006;
- the
sixth applicant on 10 November 2006;
- the
seventh applicant on 4 December 2006;
- the
eighth applicant on 5 December 2006;
- the
ninth applicant on 28 November 2006;
- the
tenth applicant on 14 December 2006;
- the
eleventh applicant on 20 November 2006;
- the
twelfth applicant on 8 December 2006;
- the
thirteenth applicant on 7 December 2006;
- the
fourteenth applicant on 21 December 2006;
- the
fifteenth applicant on 21 August 2006;
- the
sixteenth applicant on 26 December 2006;
- the
seventeenth applicant on 7 February 2007;
- the
eighteenth applicant on 5 January 2007;
- the
nineteenth and twentieth applicants on 5 February 2007;
- the
twenty-first and twenty-fifth applicants on 7 March 2007;
- the
twenty-second applicant on 1 March 2007;
- the
twenty-third applicant on 28 March 2007;
- the
twenty-fourth applicant on 11 April 2007;
- the
twenty-sixth applicant on 5 October 2007;
- the
twenty-seventh applicant on 3 September 2007;
- the
twenty-eighth applicant on 5 September 2007;
- the
twenty-ninth applicant on 19 October 2007;
- the
thirtieth applicant on 13 June 2007; and
- the
thirty-first applicant on 3 September 2007.
- In
its reasoning in the applicants' cases, the District Court held,
inter alia, that the Director General of JAT Airways had not
been authorised to grant payment of the benefit at issue in the
absence of an explicit governmental authorisation.
- In
another 23 separate cases, for the same reasons, the District Court
also ruled against the plaintiffs.
- However,
in at least 17 other judgments, rendered between 31 May 2006 and 5
December 2007, the District Court decided in favour of the
applicants' colleagues, 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 explained,
inter alia, that JAT Airways had had to comply with the
agreement of 28 November 2004, as well as the decision of its
Director General of 29 November 2004.
- On
27 September 2006 the District Court adopted a “legal opinion”
(pravno shvatanje) affirming the reasoning described at
paragraph 13 above.
- On
21 November 2006 the applicants filed a request urging the Fourth
Municipal Court to proceed in accordance with Article 176 of the
Civil Procedure Act 2004 (see paragraph 39 below), that is to seek
guidance from the Supreme Court (Vrhovni sud Srbije) on how to
deal with a large number of cases, including their own, wherein the
District Court had already ruled inconsistently.
- On
27 February 2007 the Supreme Court rejected the Fourth Municipal
Court's request made to this effect on 10 January 2007. In so doing,
it noted, inter alia, that Article 176 was inapplicable
because in a number of cases at issue the District Court had already
ruled as the final instance, and stressed that it was up to the said
court to harmonise its own case-law.
- On
17 July 2008 the Constitutional Court (Ustavni sud Srbije)
rejected the motion for abstract review (inicijativa za ocenu
zakonitosti) filed by JAT Airways, requesting to have the
agreement of 28 November 2004 and the Director General's decision of
29 November 2004 declared unlawful. The court explained that it had
no jurisdiction ratione materiae given that the impugned
documents could not be qualified as general acts (opšti
akti) within the meaning of Article 167 § 1 of the
Constitution (see paragraph 24 below).
- In
the meantime, JAT Airways lodged several separate counterclaims
against the applicants, seeking that the said agreement and the
Director General's decision be declared null and void. Ultimately,
however, all of these claims would appear to have been rejected on
various procedural grounds.
- Dozens
of separate cases such as the applicants' seem to be still pending at
first or second instance.
II. RELEVANT DOMESTIC LAW
A. The Constitution of the Republic of Serbia 1990
(Ustav Republike Srbije; published in the Official Gazette of the
Republic of Serbia - OG RS - no. 1/90)
- Article
22 § 1 of the Constitution provided, inter alia, that
everyone “shall be entitled to the equal protection of his or
her rights in a suit before a court of law”.
- This
Constitution was repealed in November 2006, which is when the new
Constitution, published in OG RS no. 98/06, entered into force.
B. The Constitution of the Republic of Serbia 2006
(Ustav Republike Srbije; published in OG RS no. 98/06)
- The
relevant provisions of the Constitution read as follows:
Article 32 § 1
“Everyone shall have the right to ... [a fair
hearing before a] ... tribunal ... [in the determination] ... of his
[or her] rights and obligations ...”
Article 167 § 1
The Constitutional Court shall decide about:
...
5. the compliance of general acts [opštih
akata] adopted by organisations exercising delegated public
powers ... with the Constitution and the laws.
Article 170
“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.”
Article 172 §§ 1, 2 and 3
“The Constitutional Court shall have fifteen
judges who shall be elected or appointed for a period of nine years.
Five judges of the Constitutional
Court shall be elected by the National Assembly, another five shall
be appointed by the President of the Republic, and another five shall
be appointed at the general session of the
Supreme Court of Cassation...
The National Assembly shall elect
five judges of the Constitutional Court from among ten candidates
proposed by the President of the Republic, the President of the
Republic shall appoint five judges of the Constitutional Court from
among ten candidates proposed by the National Assembly, and the
general session of the Supreme Court of Cassation shall appoint five
judges from among ten candidates proposed at the general session by
the High Judicial Council and the State Prosecutors' Council.”
Article 175 § 1
“The Constitutional Court shall adjudicate by the
majority of votes cast by all judges of the Constitutional Court.”
C. Constitutional Act on the Implementation of the
Constitution of the Republic of Serbia (Ustavni zakon za sprovođenje
Ustava Republike Srbije; published in OG RS no. 98/06)
- In
accordance with Article 9 § 3 the Constitutional Court shall be
deemed constituted when two thirds of the total number of judges have
been elected or appointed.
D. Constitutional Court Act (Zakon o Ustavnom sudu;
published in OG RS no. 109/07)
- The
relevant provisions of this Act read as follows:
Article 7 § 1
“The decisions of the Constitutional Court shall
be final, enforceable and binding.”
Article 10 § 1
“The Constitutional Court shall have its Rules of
Procedure ... which shall regulate, in greater detail, the
organisation ... [and the functioning of the Constitutional Court]
... as well as the proceedings ... [before it] ...”
Article 27 §§ 1 and 2
“ ... [T]he Constitutional Court shall have a
Registry.
The organisation, the tasks, and the functioning of the
Registry shall be regulated, in greater detail, by ... the
Constitutional Court.”
Article 82 §§ 1 and 2
“A constitutional appeal may be lodged against an
individual decision or an action of a State body or an
organisation exercising delegated public powers which violates or
denies human or minority rights and freedoms guaranteed by the
Constitution, if other legal remedies have already been exhausted or
have not been prescribed or where
the right to their judicial protection has been excluded by law.
A constitutional appeal may be lodged even if all
available remedies have not been exhausted in the event of a breach
of an applicant's right to a trial within a reasonable time.”
Article 83 § 1
“A constitutional appeal may be lodged by any
individual who believes that any of his or her human or
minority rights or freedoms guaranteed by the Constitution has
been violated or denied by an individual decision or an action of a
State body or an organisation exercising delegated public powers.”
Article 84 § 1
“A constitutional appeal may be lodged within
thirty days of receipt of the individual decision or the date of
commission of the actions ... [in question] ...”
Article 89 §§ 2 and 3
“When the Constitutional Court finds that an ...
individual decision or action has violated or denied a human or
minority right or a freedom guaranteed by the Constitution, it shall
annul the ... decision in question or ban the continuation of such
action or order the implementation of other specific measures as well
as the removal of all adverse consequences within a specified period
of time.
The decision of the Constitutional Court accepting a
constitutional appeal shall constitute a legal basis for requesting
compensation or the removal of other adverse consequences before a
competent body, in accordance with the law.”
Article 90
“... [An applicant who has obtained a
Constitutional Court decision in his or her favour] .., may lodge a
compensation claim with the Commission for Compensation in order to
reach an agreement in respect of the amount ... [of compensation to
be awarded] ...
If the Commission for Compensation does not rule
favourably in respect of a compensation claim or fails to issue a
decision within thirty days from the date of its submission, the
applicant may file a civil claim for damages before the
competent court. If only partial agreement has
been achieved, a civil claim may be filed in respect of the remainder
of the amount sought.
The composition and operation of the Commission for
Compensation shall be regulated by the Minister of Justice.”
Article 113 §§ 2 and 3
“A constitutional appeal may also be lodged
against ... [the individual decision or action in question] ... if
this decision ... [has been adopted] ... or this action has been
undertaken between the date of promulgation of the Constitution and
the date of entry into force of this Act.”
... [In this case a constitutional appeal may be lodged]
... within thirty days as of the date of entry into force of this
Act”
Article 116
“The Constitutional Court shall, within ninety
days as of the date of entry into force of this Act, adopt its Rules
of Procedure and ... [further regulate the organisation and
functioning of its Registry] ...”
The Minister of Justice shall, within ninety days as of
the date of entry into force of this Act ... [regulate the
composition and the operation of the Commission for Compensation]
...”
E. Rules of Procedure adopted by the Constitutional
Court (Poslovnik o radu Ustavnog suda; published in OG RS nos. 24/08
and 27/08)
- These
Rules, inter alia, contain the necessary details as regards
the processing of appeals lodged with the Constitutional Court.
F. Entry into force of the above legislation
- The
new Constitution of the Republic of Serbia and the Constitutional Act
on its implementation were both promulgated in November 2006.
- By
24 November 2007 two thirds of the total number of Constitutional
Court judges had been elected or appointed (see paragraph 25 above).
- The
Constitutional Court Act entered into force on 6 December 2007.
- The
Rules of Procedure of the Constitutional Court, published in OG RS
no. 24/08, entered into force on 15 March 2008. Minor textual
corrections thereof were published in OG RS no. 27/08 of 17 March
2008.
G. The case-law of the Constitutional Court and the
Commission for Compensation
- By
9 July 2009 the Constitutional Court had considered several hundred
appeals alleging individual human rights violations, and had found
breaches in dozens of cases concerning, inter alia, access to
court, detention, length of proceedings, and various procedural
fairness issues (see
http://www.ustavni.sud.sr.gov.yu/sudska_praksa/uzalbe.php).
- The
first decisions on the merits of the appellants' complaints,
including the very first decision establishing a violation of the
Constitution, had been adopted on 10 July 2008 (ibid.), and were
published in OG RS no. 74/08 of 7 August 2008.
- Where
appropriate, the Constitutional Court had, in a number of cases,
quashed decisions adopted by the lower courts, as well as the Supreme
Court, ordered that the excessively protracted judicial proceedings
be concluded as soon as possible, and held that financial
compensation for the damage suffered by the appellant had been
warranted.
- By
26 May 2009 the Commission for Compensation had awarded damages in at
least 4 cases where the Constitutional Court had already found a
violation and held that adequate compensation was called for.
H. Civil Procedure Act 2004 (Zakon o parničnom
postupku; published in OG RS no. 125/04)
- Article
2 § 1 provides, inter alia, that all parties shall be
entitled to the equal protection of their rights.
- Article
12 provides that when a court's decision in a pending suit rests on
the prior resolution of a preliminary legal issue, the court itself
may rule on this issue, as well as the main claim, unless the
relevant legislation provides otherwise. The court's decision as
regards the preliminary issue, however, shall only be legally binding
in respect of the ongoing judicial proceedings.
- Article
149 provides, inter alia, that, in principle, legal costs and
expenses shall be divided proportionately between the parties, based
on the measure of their success in the proceedings. Should a party
lose the case entirely, that party shall be obliged to pay all the
legal costs and expenses incurred.
- Article
176 provides that when there are many cases
pending at first instance raising the same preliminary legal issue,
the court of first instance shall, either ex
officio or at one of the parties'
requests, be entitled to institute separate proceedings before the
Supreme Court, petitioning the latter to resolve the issue in
question. The lawsuits pending at first instance shall be stayed in
the meantime.
- Articles 3 § 3, 413, 415, 417 and 418 provide
that the Public Prosecutor shall, ex officio or in response to
a party's specific proposal, within a period of
three months, have the right to lodge a Request for the Protection of
Legality
against a final civil court decision, should it transpire that
the decision in question was “based on the parties' unlawful
dispositions” (nedozvoljeno raspolaganje stranaka), i.e.
those undertaken in breach of the “binding provisions of
domestic law, public order or the rules of morality” (prinudni
propisi, javni poredak i pravila morala). Should the Public
Prosecutor refuse to lodge a request of this sort, the party who had
urged him to do so shall, within thirty days, have the right to file
its own Request for the Protection of Legality
with the Supreme Court.
- Article
422.8 provides that a case which has been concluded by means of a
final court decision may be re-opened, at the interested party's
request, if the preliminary legal issue, within the meaning of
Article 12 of this Act, was subsequently resolved in a different
manner by the competent State body. Article
422.10 further 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.
- This
Act entered into force in February 2005, thereby repealing the Civil
Procedure Act 1977.
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 ARTICLES 6 § 1, 13 AND 14 OF THE
CONVENTION
- The
applicants relied on Articles 6 § 1, 13 and 14 of the
Convention. In substance, however, they complained about the
rejection of their own claims by the District Court in Belgrade, at
final instance, based on the “erroneous application of the
relevant domestic legislation”, and the same court's
simultaneous acceptance of identical claims filed by their
colleagues.
- The
relevant provisions of the said Articles 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 ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
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.”
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. Primarily, in their appeals lodged against the
judgments adopted at first instance, the applicants should have
contested the decision to separate the proceedings in question and
requested that their claims be examined jointly and consistently.
Secondly, the applicants should have filed a request under Article
176 of the Civil Procedure Act 2004 much earlier (see paragraphs 17,
18 and 39 above), whilst their cases were still pending at first
instance. Thirdly, the parties could have lodged a Request for the
Protection of Legality (see paragraph 40 above). In particular,
although the applicants might not have had a “legal interest”
in claiming that the agreement and decision at issue had been “based
on the parties' unlawful dispositions” (see paragraphs 8, 9 and
40), JAT Airways should have done so. Indeed, the latter had also
failed to make use of several other remedies. Fourthly, the
applicants should have brought a separate civil suit, requesting that
the said agreement and decision be confirmed as legally valid, even
in the absence of a governmental authorisation to this effect. In the
meantime, the applicants' original suits could have been stayed
pending the outcome of this case and ultimately, upon its conclusion,
resolved consistently (see paragraph 37 above). In the alternative,
had the applicants' original suits already been concluded, they could
have used this judgment to request the re-opening of their cases (see
paragraph 41 above). Finally, given the date of promulgation of the
“new Constitution”, except for the first, second, third,
and fifteenth applicants, all remaining applicants should have lodged
an appeal with the Constitutional Court (see paragraph 28 above).
- The
applicants maintained that they had exhausted all effective domestic
remedies, adding that the constitutional appeal had not been
effective at the relevant time.
2. The Court's assessment
- The
Court recalls that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention requires
applicants first to use the remedies provided by the national legal
system, thus dispensing States from answering before the Court for
their acts before they have had an opportunity to put matters right
through their own legal system. The burden of proof is on the
Government claiming non-exhaustion to satisfy the Court that an
effective remedy was available in theory and in practice at the
relevant time; that is to say, that the remedy was accessible,
capable of providing redress in respect of the applicant's complaints
and offered reasonable prospects of success. However, once this
burden of proof has been satisfied it falls to the applicant to
establish that the remedy advanced by the Government was in fact
exhausted or was for some reason inadequate and ineffective in the
particular circumstances of the case or that there existed special
circumstances absolving him or her from the requirement (see, inter
alia, T. v. the United Kingdom [GC], no. 24724/94, §
55, 16 December 1999).
- The
Court notes that the application of the “exhaustion rule”
must also make due allowance for the context. Accordingly, it has
recognised that Article 35 § 1 must be applied with some
degree of flexibility and without excessive formalism (see the
Akdivar and Others v. Turkey judgment of 16 September
1996, Reports of Judgments and Decisions 1996-IV, p.
1211, § 69). Further, an effective domestic remedy must form a
part of the normal process of redress and cannot be of a
discretionary character. The applicant must, therefore, be able to
initiate the proceedings directly, without having to rely on the
benevolence of a State body (see, inter alia, Lepojić
v. Serbia, no. 13909/05, § 53, 6 November
2007). Finally, where there are several effective remedies available,
it is for the applicant to select which remedy to pursue in order to
comply with the requirements of Article 35 § 1 of the Convention
(see Airey v. Ireland, judgment of 9 October 1979, Series A
no. 32, p. 12, § 23).
- Turning
to the present case, the Court observes that the Fourth Municipal
Court's decision to separate the single lawsuit brought by the
applicants and the other plaintiffs jointly into a number of parallel
sets of proceedings had been of a procedural nature and, as such, of
no bearing on the ultimate determination of the applicants' claims on
their merits. In any event, the applicants had only become aware of
the final outcome of their civil suits upon receipt of the decisions
rendered by the District Court at second instance. The applicants had
further had “no right under law” to request
directly the preliminary consideration of their claims by the Supreme
Court in accordance with Article 176 of the Civil Procedure Act (see
paragraph 39 above), no “legal interest”, as admitted by
the Government themselves (see paragraph 46 above), to file a Request
for the Protection of Legality with the same court, and certainly no
obligation to bring a separate civil suit concerning the same
underlying issue. It follows, therefore, that none of these remedies
can be considered effective.
- Finally,
as regards legal systems which provide constitutional protection for
fundamental human rights and freedoms, such as the one in Serbia, the
Court recalls that it is incumbent on the aggrieved individual to
test the extent of that protection (see, inter alia, Mirazović
v. Bosnia and Hercegovina (dec.), no. 13628/03, 16 May 2006).
With this in mind, given the power of the Serbian Constitutional
Court (see paragraph 26 above, in particular Articles 7 § 1, 82
§§ 1 and 2, 83 § 1, 89 §§ 2 and 3 of the
Constitutional Court Act), as evidenced through its case-law (see
paragraphs 32-34 above), as well as the competence of the Commission
for Compensation (see paragraphs 26 and 35 above, in particular
Articles 89 § 3 and 90 of the Constitutional Court Act quoted in
paragraph 26), the Court is of the opinion that a constitutional
appeal should, in principle, be considered as an effective domestic
remedy within the meaning of Article 35 § 1 of the Convention in
respect of all applications introduced as of 7 August 2008, that
being the date when the Constitutional Court's first decisions on the
merits of the said appeals had been published in the respondent
State's Official Gazette (see paragraph 33 above; see also, mutatis
mutandis, Pikić v. Croatia, no. 16552/02, §§
24, 25 and 29, 18 January 2005). In the present case, however, since
all applicants had filed their applications with the Court before
that date and because the issue of whether domestic remedies have
been exhausted is normally determined by reference to the date when
the application was lodged, the Court considers that the applicants
had indeed had no obligation to exhaust this particular avenue of
redress before turning to Strasbourg (see Cvetković v.
Serbia, no. 17271/04, § 41, 10 June 2008).
- In
view of the above and it being understood that any remedies which JAT
Airways could possibly have made use of are irrelevant, the Court
finds that the applicants' complaints cannot be declared inadmissible
for non-exhaustion of domestic remedies under Article 35 § 1 of
the Convention. Accordingly, the Government's objection in this
respect must be dismissed.
- The
Court further considers that the applicants' complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and finds no other ground to declare them
inadmissible. The complaints must therefore be declared admissible.
B. Merits
- The
Government maintained that there had been no violation of the
Convention and argued that the correct decision, pursuant to the
relevant domestic law, was indeed to rule against the applicants (see
paragraph 16 above). They further noted that judicial precedent
was not a binding source of law in Serbia, and emphasised that the
domestic courts were independent in their work. Lastly, the
Government pointed out that the inconsistency alleged by the
applicants concerned the merits of their claims only, rather than any
procedural issue, and did not involve the Supreme Court's case-law
nor did it relate to any prior systemic and/or grave injustice.
- The
applicants reaffirmed their complaints.
- The
Court notes 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 cases at hand
the conflicting interpretations stemmed from the same jurisdiction,
i.e. the District Court in Belgrade as the court of last resort in
the matter (see, mutatis mutandis, Tudor Tudor v. Romania,
no. 21911/03, § 29, 24 March 2009),
and involved the inconsistent adjudication of claims brought by many
persons in identical situations even after the adoption of the
District Court's “opinion” of 27 September 2006 (see
paragraph 16 above). Since these conflicts were not institutionally
resolved, 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. The Court therefore, without deeming it
appropriate to pronounce as to what the actual outcome of the
applicants' lawsuits should have been (see, mutatis mutandis,
Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR
1999- I), considers that the judicial uncertainty in question
has in itself deprived them 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, 24 March 2009).
- Having
regard to this finding of a violation, the Court considers that it is
not necessary to examine whether, in this case, there has also been a
violation of Articles 13 and 14 taken together with Article 6 §
1 of the Convention (see, mutatis mutandis, Tudor Tudor v.
Romania, cited above, § 33).
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 requested that the State be ordered to pay, from its own
funds, the respective sums sought in their suits brought against JAT
Airways.
- The
Government contested those claims.
- Having
regard to the violation found in the present case and its reasons for
so doing (see paragraph 56 above, particularly the reference to the
outcome of the applicants' suits), as well as in view of the
provisions of Article 422.10 of the Civil Procedure Act 2004 (see
paragraph 41 above), the Court considers that the applicants' claims
must be rejected.
B. Costs and expenses
- Each
applicant also claimed the costs and expenses incurred in the
domestic proceedings, another EUR 280 each for the application giving
rise to the proceedings before the Court, as well as a total of
approximately EUR 1,400 in Serbian Dinars for the submission of
their joint written observations and the related translation costs.
- 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 300 for
their costs and expenses incurred in connection with their Strasbourg
case (see, mutatis mutandis, R. Kačapor and
Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06,
3045/06 and 3046/06, §§ 130-135, 15 January 2008).
- As
regards the costs and expenses incurred domestically, the Court is of
the opinion that they must be rejected given the provisions of
Articles 422.10 and 149 of the Civil Procedure Act 2004 (see
paragraphs 41 and 38 above, in that order).
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;
- Declares the applications admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that it is not necessary to examine
separately the applicants' complaints under Articles 13 and 14 taken
together with Article 6 § 1 of the Convention;
- Holds
(a)
that the respondent State is to pay each applicant, within three
months as of the date on which this judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 300 (three hundred euros) for the costs and expenses incurred
before the Court, which sum is to be converted into the respondent
State's national currency at the rate applicable on the date of
settlement, plus any tax that may be chargeable to the applicants;
(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 1 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
