CASE OF RAKIC AND OTHERS v. SERBIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
5. The applicants, Mr Slobodan Rakić (“the first applicant”), Mr Živorad 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 Božović (“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. 6. 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. 7. The facts, as submitted by the parties, may be summarised as follows. 8. 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. 9. 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. 10. In reality, the applicants only received the increase approved by the Ministry, amounting to significantly less than the envisaged doubling of their salaries. 11. 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. 12. Certain applicants were successful before the Municipal Court; others were not. However, all the applicants were unsuccessful at second instance before the District Court (Okružni 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. 13. 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. 14. 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. 15. 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). 16. 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. 17. 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. 18. In eighteen separate cases the plaintiffs thereafter lodged their appeals with the Constitutional Court (ustavne žalbe), but, according to the information contained in the case file, these proceedings are all still pending. 19. None of the applicants lodged an appeal on points of law or attempted to obtain constitutional redress. 20. 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). 21. Article 2 § 1 provides, inter alia, that all parties shall be entitled to the equal protection of their rights. 22. Articles 355-384 provide details as regards an appeal which may be filed against a judgment rendered at first instance (žalba). Article 355 § 1, in particular, provides that such an appeal must be filed within a period of fifteen days. 23. Article 438, however, provides that an appeal (žalba) in a labour dispute must be filed within a period of eight days. 24. 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. 25. Article 394 § 2 provides, inter alia, that an appeal on points of law is “not admissible” in pecuniary disputes (kad se tužbeni zahtev odnosi na potraživanje u novcu) where the “value of the part of the final judgment being contested” does “not exceed 500,000 dinars”. 26. 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) 27. 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. 28. 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. 29. 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.