European Court of Human Rights

SECOND SECTION

DECISION

Application no. 39992/08
Miljan MILJKOVIĆ against Serbia
and 17 other applications
(see list appended)

The European Court of Human Rights (Second Section), sitting on 31 January 2012 as a Chamber composed of:

András Sajó, President,
Dragoljub Popović,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above applications lodged between 11 August 2008 and 20 February 2009,

Having regard to the decision to grant priority to the above applications under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Miljan Miljković (“the first applicant”), Mr Miroslav Mihajlović (“the second applicant”), Mr Mijodrag Jovanović (“the third applicant”), Mr Slaviša Milutinović (“the fourth applicant”), Mr Saša Vukadinović (“the fifth applicant”), Mr Miljan Miljojković (“the sixth applicant”), Mr Veselin Kuč (“the seventh applicant”), Mr Milan Vučinić (“the eight applicant”), Mr Saša Đorđević (“the ninth applicant”), Mr Oliver Radosavljević (“the tenth applicant”), Mr Bogoljub Mihajlović (“the eleventh applicant”), Mr Srđan Jevtić (“the twelfth applicant”), Mr Zoran Bošković (“the thirteenth applicant”), Mr Radiša Aritonović (“the fourteenth applicant”), Mr Radovan Radonjić (“the fifteenth applicant”), Mr Zoran Jovanović (“the sixteenth applicant”), Mr Nikola Vukićević (“the seventeenth applicant”) and Mr Svetislav Milosavljević (“the eighteenth applicant”), are all Serbian nationals (for the respective registration number and date of introduction of each application see the annex to the decision). They were represented before the Court by Mr N. Vukotić, a lawyer practising in Belgrade. The Government of Serbia (“the Government”) were represented by their Agent, Mr S. Carić.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

All applicants are employed as police officers at the Ministry of Internal Affairs of the Republic of Serbia (Ministarstvo unutrašnjih poslova Republike Srbije, hereinafter “the Ministry”). They reside and work in Kosovo.¹

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.

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.

In reality, the applicants only received the increase approved by the Ministry, amounting to significantly less than the doubling of their salaries envisaged by the Government.

Between 4 October 2005 and 26 July 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 applicants further requested payment of unspecified amounts on account of the related pension and disability insurance contributions.

Certain applicants were successful before the Municipal Court; others were not. However, all the applicants were unsuccessful at second instance before the District Court (OkruZni sud) in Belgrade whose decisions they received between 28 February 2008 and 1 December 2008. 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.

None of the applicants attempted to obtain constitutional redress.

However, in seventy-three other separate judgments, rendered between 25 January 2006 and 1 October 2008, the same District Court ruled in favour of the relevant 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.

Of these seventy-three judgments mentioned above, in fifty cases the respondent lodged appeals on points of law (revizije) with the Supreme Court, whilst in the remaining twenty-three cases, however, the respondent lodged no such appeal, apparently in the light of the statutory threshold. The Government provided the eleven judgments in which, deciding upon appeals on points of law, the Supreme Court ruled against the plaintiffs, holding, inter alia, that the Government’s decision of 17 July 2003 had not been directly applicable.

In the meantime, on 10 September 2008 the Employment Disputes Division (Odeljenje za radne sporove) of the District Court adopted a “legal opinion” (pravno shvatanje) affirming that court’s reasoning in the applicants’ respective disputes.

Furthermore, 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 applicants’. 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.

B.  Relevant domestic law

The relevant domestic law is set out in the Rakić and Others v. Serbia judgment (nos. 47460/07, 49257/07, 49265/07, 1028/08, 11746/08, 14387/08, 15094/08, 16159/08, 18876/08, 18882/08, 18997/08, 22997/08, 23007/08, 23100/08, 23102/08, 26892/08, 26908/08, 29305/08, 29306/08, 29323/08, 29389/08, 30792/08, 30795/08, 31202/08, 31968/08, 32120/08, 32537/08, 32661/08, 32666/08 and 36079/08, §§ 20-29, 5 October 2010).

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention that the case-law of the domestic courts concerning the payment of the same salary increase granted to a certain category of police officers was flagrantly inconsistent.

THE LAW

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.

The Government maintained that the applicants had not exhausted all effective domestic remedies within the meaning of Article 35 § 1 of the Convention. In particular, they had failed to lodge a constitutional appeal with the Constitutional Court of Serbia.

The applicants stated that the constitutional complaint should not be deemed as an effective legal remedy in general.

The above objection falls to be examined under Article 35 § 1 of the Convention which reads as follows:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court recalls that it has already held 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 against Serbia (see Vinčić and Others v. Serbia, (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, § 51, 1 December 2009). It does not see any reason to hold otherwise in the present case.

The Court notes that the present applications were introduced before this Court between 11 August 2008 and 20 February 2009 (for the date of introduction of each application see annex). Before submitting their applications to the Court, the applicants have neither attempted to exhaust the constitutional complaint, nor shown that it would have been for any reason inadequate or ineffective in the particular circumstances of their cases. The Court sees no special circumstances absolving the applicants from the obligation to use this remedy (see, mutatis mutatis, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 67).

Thus, the Court finds that these applications must be rejected as inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications, and

Declares the applications inadmissible.

Françoise Elens-Passos András Sajó
Deputy Registrar President

ANNEX