CASE OF VUČKOVIĆ AND OTHERS v. SERBIA 
Preliminary objection allowed (Article 35-1 - Effective domestic remedy)
Aleš Pejchal;Alvina Gyulumyan;András Sajó;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;Ganna Yudkivska;Guido Raimondi;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Mark Villiger;Nona Tsotsoria;Päivi Hirvelä;Vincent A. De Gaetano;Ksenija Turković
12. The facts of the case, as submitted by the parties, may be summarised as follows. 13. The applicants were all reservists who had been drafted by the Yugoslav Army in connection with the North Atlantic Treaty Organisation’s intervention in Serbia. They remained in military service between March and June 1999, and were thus entitled to a certain per diem under the Rules on Travel and Other Expenses in the Yugoslav Army (see paragraph 44 below) and by virtue of two separate decisions (nos. 03⁄825-2 and 06⁄691-1) adopted by its Chief of Staff on 1 and 3 April 1999 respectively. 14. However, following the demobilisation the Government allegedly refused to honour their obligation to the reservists, including the applicants. 15. The reservists subsequently organised a series of public protests, some of which ended in open confrontation with the police. Ultimately, following protracted negotiations, on 11 January 2008 the Government reached an agreement with some of the reservists (“the Agreement”), in particular those residing in the municipalities of Kuršumlija, Lebane, Bojnik, Žitorađa, Doljevac, Prokuplje and Blace, whereby these reservists were guaranteed payment in six monthly instalments. This payment was to be effected through their respective municipalities, aggregate sums having been specified per municipality. The said municipalities were apparently chosen because of their “underdeveloped” status, implying the reservists’ indigence. For their part, the reservists in question agreed to renounce all their outstanding claims based on their military service in 1999 which were still pending before the civil courts, as well as any other claim in this connection. It was, lastly, stipulated that the criteria for the distribution of the “financial aid” in question should be set out by a Commission consisting of local government representatives and the representatives of the reservists themselves. 16. The applicants, like all other reservists without a registered residence in one of the seven municipalities in question, could not benefit from the Agreement. 17. On 26 March 2009 the applicants therefore filed a civil claim against the respondent State based on the regulations referred to in paragraph 13 above. In their submissions, they pointed inter alia to the discrimination resulting from the Agreement. By way of redress (tužbeni zahtev), the applicants requested the payment of specific sums on account of the per diems in question, as well as certain other benefits, without relying on any anti-discrimination provision – domestic or international – or otherwise referring to the issue of discrimination. 18. On 8 July 2010 the Niš Court of First Instance (Osnovni sud) ruled against the applicants. In so doing, it acknowledged that their claim had a valid legal basis but noted, as pointed out by the respondent, that the applicable prescription period had been three years as of their demobilisation, in accordance with section 376 § 1 of the Obligations Act (see paragraph 49 below). The applicants’ claim had thus been filed out of time. 19. On 2 August 2010 the applicants lodged an appeal against that judgment, complaining about various procedural violations allegedly committed at first instance, the failure of the court in question to properly establish all of the relevant facts, and the erroneous application of the applicable prescription periods. The applicants also referred to the Agreement, in so far as other reservists had thus resolved their problem without litigation, but they did not rely on any anti-discrimination provision, domestic or international. 20. On 16 November 2010 the Niš Court of Appeal (Apelacioni sud) upheld the impugned judgment on appeal, and it thereby became final. In its reasoning the court stated, inter alia, that the per diems had indeed “only been partly paid” by the Ministry of Defence (Ministarstvo odbrane) but that both the three-year and the five-year prescription periods provided for in section 376 §§ 1 and 2 of the Obligations Act had already elapsed before the applicants had filed their civil claim (see paragraph 49 below). The Court of Appeal considered the Agreement as having no bearing on the matter since the applicants had sought payment of the sums owed to them on a different legal basis. 21. Having been served with the Court of Appeal’s decision, on 21 January 2011 the applicants lodged a further appeal (ustavna žalba) with the Constitutional Court (Ustavni sud). Relying on Articles 32 and 36 of the Constitution (see paragraph 32 below) and Article 6 of the Convention, they complained about the fairness of the civil proceedings and the erroneous application of the relevant domestic law, including the provisions concerning prescription. The applicants also maintained that the impugned judgment of the Niš Court of Appeal was inconsistent with numerous judgments adopted by other appellate courts in Serbia – that is the district courts (okružni sudovi) while they existed, as well as the high courts and the courts of appeal (viši i apelacioni sudovi) thereafter – which on the same facts had applied a longer, ten-year, prescription period and ruled in favour of the plaintiffs (see section 371 of the Obligations Act, in paragraph 48 below). Lastly, the applicants mentioned the Agreement and the Government’s subsequent decision endorsing it, but did not elaborate on their substance and⁄or impact. 22. On 5 December 2012, following the adoption of the judgment by the Chamber in the present case, the Constitutional Court ruled in favour of the applicants as regards their complaints of inconsistent domestic case-law in respect of the civil courts’ application of the statutory time-limitation (the same complaints the Chamber had rejected as manifestly ill-founded – see paragraphs 54-60 of its judgment of 28 August 2012), but made no mention of the Agreement. The Constitutional Court accordingly found a violation of Article 36 § 1 of the Constitution. It ordered that its decision be published in the Official Gazette of the Republic of Serbia, deeming this sufficient redress in a situation where the civil courts had, despite the said inconsistency, applied the relevant substantive law based on a “constitutionally acceptable interpretation” thereof. For more detailed reasoning, the Constitutional Court referred to its decision of 7 November 2012 concerning the same issue in another case involving different appellants (Už. 2156⁄11). 23. The Constitutional Court’s decision of 7 November 2012 referred, inter alia, to the inconsistent case-law in question, citing specific judgments irrespective of the time-frame, and found a violation of the appellants’ right to equal protection before the courts as guaranteed under Article 36 § 1 of the Constitution. The Constitutional Court was of the opinion that the courts of last instance, by ruling differently on the validity of claims based on identical facts and law, had placed appellants whose claims had been rejected in a materially different position from that of claimants whose claims had been allowed. There had accordingly been a violation of Article 36 § 1. However, the Constitutional Court considered that the allegations before it presented no constitutional basis upon which it could establish a violation of the appellants’ right to a fair trial in so far as they complained about procedural fairness and the civil courts’ allegedly inadequate characterisation of the legal nature of their claims. The appellants’ additional complaint, raised under Article 21 of the Constitution, was also rejected. In particular, there was no evidence to corroborate the claim that the first- and second-instance court decisions in the appellants’ civil case had been rendered on the basis of any “personal qualities”, this being a precondition for determining the existence of a violation of the principle of non-discrimination. The Constitutional Court took note of the Chamber’s finding of 28 August 2012 of a violation of the prohibition of discrimination under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (see paragraph 7 above; for additional constitutional case-law to this effect, see decision Už. 2886⁄10 of 4 October 2012, as well as decisions Už. 649⁄11 and Už. 2021⁄11, both of 12 December 2012, in their relevant parts), but for reasons that were different from those stated in this particular constitutional appeal. The fact that the latter complaint had been dismissed did not affect the State’s obligation to act in accordance with the European Court’s decision in respect of all persons, including the appellants, whose war per diems had not been paid out. 24. Between 2002 and early March 2009 first-instance and appellate courts across Serbia ruled both in favour of reservists in a situation comparable to that of the applicants and against them, relying on the threeyear⁄five-year or ten-year prescription periods respectively (for examples of cases where the reservists were successful see, among numerous others, Belgrade District Court judgments Gž. 1703⁄05 and 2386⁄08 of 13 April 2005 and 16 July 2008 respectively). 25. In the meantime, in 2003 and 2004 the Supreme Court had adopted two legal opinions (pravna shvatanja), both of which implied that the applicable prescription period should be three or five years pursuant to section 376 §§ 1 and 2 of the Obligations Act (see paragraph 49 below). 26. Between 25 February 2010 and 15 September 2011 various appellate courts substantively ruled in compliance with the Supreme Court’s opinions of 2003 and 2004 (see, for example, Kraljevo High Court decision Gž. 1476⁄11 of 15 September 2011; Valjevo High Court decisions Gž. 252⁄10 of 25 February 2010, 806⁄10 of 27 May 2010, 1301⁄10 of 30 September 2010, 1364⁄10 of 4 November 2010 and 355⁄11 of 24 March 2011; Kruševac High Court decisions Gž. 38⁄11 of 27 January 2011, 282⁄11 of 7 April 2011 and 280⁄11 of 26 April 2011; and Niš Court of Appeal decisions Gž. 2396⁄10 of 23 June 2010, 3379⁄2010 of 2 July 2010, 2373⁄2010 of 21 July 2010 and 4117⁄2010 of 30 November 2010). 27. Between 17 June 2009 and 23 November 2011 there were also a number of decisions where appellate courts ruled against the reservists, albeit on a different ground. Their claims, unlike those of the applicants in the present case, were rejected as being administrative in nature and as such falling outside the competence of the civil courts (see Belgrade District Court decision Gž. 7773⁄09 of 17 June 2009, and Belgrade High Court decisions Gž. 11139⁄10, 11636⁄10 and 10897⁄10, of 17 November 2010, 23 November 2011 and 23 November 2011 respectively). 28. On 17 January 2008 the Government endorsed the Agreement, and decided to pay the municipalities in question the amounts specified therein. 29. On 28 August 2008 the Government set up a working group tasked with addressing the requests of all other reservists, that is to say those not resident in the seven municipalities mentioned above. However, having discussed the issue with various groups of reservists, this working group ultimately concluded that their demands were not acceptable, inter alia because: (a) they had not harmonised or specified their requests; (b) some of their representatives had had dubious standing to represent them; (c) there was a lack of State funds which could be used for this purpose; and (d) in most cases, war per diems had already been paid to the reservists. 30. On 26 July 2011 the Commissioner for the Protection of Equality (Poverenica za zaštitu ravnopravnosti), an Ombudsman-type office established on the basis of the Prohibition of Discrimination Act (see paragraphs 40 and 41 below), considered the complaints brought by an organisation representing the interests of reservists in a situation comparable to that of the applicants. She concluded that they had been discriminated against on the basis of their registered residence, that is as non-residents of the seven privileged municipalities, and recommended that the Government take all necessary measures in order to ensure that all reservists were afforded the payments recognised by their decision of 17 January 2008. The Government were also invited to provide the Commissioner with an appropriate “action plan” within a period of thirty days. In its reasoning, the Commissioner’s decision noted, inter alia, that the payments in question were per diems, notwithstanding that the Government had chosen to consider them as social benefits awarded to persons in need (socijalna pomoć), and that this was best exemplified by the fact that the reservists in question had had to renounce their legal claims concerning the per diems, as well as the fact that the individual reservists resident in the seven municipalities in issue were never under an obligation to prove their indigence (imovinsko stanje i socijalnu ugroženost). This being so, there was clearly no objective and reasonable justification for the differential treatment of reservists merely on the basis of their place of residence. 31. On 7 December 2011 the Ministry for Labour and Social Affairs (Ministarstvo rada i socijalne politike) noted that discussions should continue with the various groups of reservists and that, if possible, financial support should be offered to the most indigent among them.