CASE OF CUPARA v. SERBIA
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1950 and lives in Sevojno. 6. On 30 May 2001 the Užice department of the Central Employment Office (Republicki zavod za tržiste rada – Nacionalna služba za zapošljavanje – Organizaciona jedinica Užice, hereinafter “the Employment Office”) granted unemployment benefits to the applicant until he found a new job or became eligible for retirement (novčana naknada do zaposlenja ili ispunjavanja uslova za starosnu penziju). 7. On 1 June 2001 the Law on Changes and Amendments to the Law on Employment and Rights of Unemployed Persons (“the 2001 Law”) came into force. The law provided for different coefficients and a different methodology for calculating such benefits. It also provided, in Article 20, that any administrative proceedings which had not been concluded by the date on which the new law came into force were to be finalised in accordance with the new law (Article 17 of the 2001 Law provided that Article 20 was applicable as of 1 September 2001). 8. The applicant was receiving the full amount of the benefits he was entitled to until October 2001. From that date the benefits were decreased to 70-80% of the amount he had initially been awarded, although the decision of 30 May 2001 had not been amended or superseded by a new decision. 9. Consequently, on 12 November 2007 the applicant brought a civil claim against the Employment Office in the Užice Municipal Court (Opštinski sud u Užicu), seeking payment of the difference between the benefits he had received and those he had been granted by the Employment Office and which had been due from 1 November 2004 (a claim for any earlier sum was statute-barred), plus statutory interest and legal costs. 10. On 26 December 2007 the Municipal Court rejected the applicant’s claim. It found that his benefits had been correctly calculated, in accordance with the 2001 Law, as the Employment Office’s decision in his case had not yet been final on the date on which the relevant law had come into force. 11. On 18 March 2008 the Užice District Court (Okružni sud u Užicu) upheld that judgment following an appeal by the applicant. 12. The applicant’s lawyer brought separate claims on behalf of numerous individuals (hereinafter “the plaintiffs”), seeking outstanding benefits. 13. On 22 November 2007 the same Municipal Court ruled in favour of M.Ð., one of the plaintiffs, whose claim was factually and legally identical to that of the applicant (M.Ð.’s administrative decision had also been delivered on 30 May 2001). That judgment became final on 19 December 2007. 14. The Municipal Court ruled in favour of several of the plaintiffs in nine judgments delivered between 24 August 2007 and 17 April 2008, although it appears that the dates on which the respective administrative decisions had come into force differed. 15. On 26 February 2008 and 19 May 2008 the Arilje Municipal Court delivered two judgments in which it ruled against plaintiffs whose claims were identical to the applicant’s. The Užice District Court upheld those two judgments on 20 March 2008 and 15 September 2008 respectively. 16. A number of plaintiffs who were in an identical situation to that of the applicant lodged constitutional appeals with the Constitutional Court of Serbia. Between 4 November 2010 and 1 March 2012 the Constitutional Court adopted a number of decisions in those cases, finding a violation of the right to a fair trial. It quashed the civil judgments and ordered the reopening of the civil proceedings. 17. Acting upon the decisions of the Constitutional Court, the Kragujevac Court of Appeal (which became the competent court of second instance for the applicant’s case after a reorganisation of courts in Serbia in 2010, instead of the Užice District Court) and the Belgrade Court of Appeal reopened proceedings in cases in which the Constitutional Court had made such an order and ruled in favour of the plaintiffs. 18. On 1 April 2014 the Supreme Court of Cassation adopted a detailed action plan aimed at ensuring the general harmonisation of case-law throughout the Serbian judicial system. The plan contained a series of measures to be taken at various levels of jurisdiction, and, inter alia, included the following: (i) the adoption of guiding legal opinions based on the principles developed in the case-law of the European Court of Human Rights; (ii) the dissemination of such opinions; (iii) regular information sharing between the courts; (iv) an increased number of thematic discussions and training programmes; (v) the adoption of specific action plans by the courts at various levels; and (vi) the development of various IT tools and related intranet databases.