CASE OF ŽIVIĆ v. SERBIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
5. The applicant was born in 1975. He resides in Kosovska Mitrovica in Kosovo, where he is employed as a police officer with the Ministry of Internal Affairs of the Republic of Serbia (Ministarstvo unutrašnjih poslova Republike Srbije, hereinafter “the Ministry”). 6. The facts, as submitted by the parties, may be summarised as follows. 7. 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. 8. On 31 January 2000 the Ministry issued a decision stating that the police officers in question were entitled to have their salaries increased by between 2.5% and 4.5%, depending on the circumstances. 9. In reality, the applicant only received the increase approved by the Ministry, amounting to significantly less than the doubling of his salary envisaged by the Government. 10. On 29 August 2006, therefore, the applicant filed a civil claim against the Ministry with the First Municipal Court (Prvi opštinski sud) in Belgrade, seeking payment of the difference between the salary increase received and that granted by the Government. The applicant further requested the payment of unspecified amounts on account of the related pension and disability insurance contributions. 11. On 23 July 2007 the First Municipal Court ruled in favour of the applicant and ordered his employer to pay: i. 145,821.60 Serbian dinars (“RSD”) (approximately 1,760 Euros (“EUR”) at the relevant time) in respect of the difference between the salary received from 1 July 2003 to August 2006 and that granted by the Government, plus statutory interest; ii. the extra pension and disability insurance contributions for the above period in respect of this additional salary to the relevant State fund; and iii. RSD 39,532 (approximately EUR 477) for his legal costs. 12. On 19 December 2007 the District Court (Okružni sud) in Belgrade reversed that judgment and rejected the applicant’s claim. In its reasoning the District Court held, inter alia, that the applicable domestic regulation was contained in the decision of the Ministry adopted on 31 January 2000. This judgment was served on the applicant on 29 January 2008. 13. Many of the applicant’s colleagues (hereinafter “the plaintiffs”) had lodged separate claims with the District Court concerning the same issue, some of which were successful while others were unsuccessful: 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 as those in the applicant’s case 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. 14. 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 21 and 24 below). In the remaining twenty-three cases, however, the respondent lodged no such appeal, apparently in the light of the statutory threshold (see paragraph 22 below). 15. The Government provided examples of relevant case-law adopted by the Supreme Court, in particular six separate judgments, of which one had been 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 had ruled against the plaintiffs, albeit with somewhat different reasoning compared with that employed by the District Court. In particular, the Supreme Court had held, inter alia, that the Government’s decision of 17 July 2003 was not directly applicable. 16. 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 like the applicant’s (see paragraph 26 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 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. 17. 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. 18. The applicant was not entitled to lodge an appeal on points of law since the value of his claim was below the threshold of 500,000 dinars. He did not attempt to obtain constitutional redress. 19. The relevant provisions 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). 20. Article 2 § 1 provides, inter alia, that all parties shall be entitled to the equal protection of their rights. 21. 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 thirty 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. 22. 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”. 23. Article 439 provides that an appeal on points of law is admissible in employment-related 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) 24. In accordance with Articles 396 and 406-409, inter alia, the Supreme Court, should it accept an appeal on points of law lodged by one of the parties concerned, has the power to overturn and/or amend the impugned judgment or quash it and order a re-trial before the lower courts. 25. 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. 26. 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 in such a meeting are binding for all panels (veća) of the division in question.