CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 août 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s416B6923 { text-indent:14.2pt; font-family:Arial; list-style-position:inside } .sACBB7403 { width:6.79pt; font:7pt 'Times New Roman'; display:inline-block } .sEB98FB19 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sFBC99493 { font-style:italic } .sD184E788 { margin-top:0pt; margin-left:96pt; margin-bottom:0pt } .s63B28A23 { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:9pt } .sBA59B8E7 { width:0.12pt; font:7pt 'Times New Roman'; display:inline-block } .s50794FE3 { margin-left:42.72pt; padding-left:7.48pt; font-family:serif } .s7E985A6D { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:9pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s34A300F8 { margin-left:21.3pt; font-family:Arial; list-style-position:inside } .s2278F906 { margin-top:0pt; margin-left:21.3pt; margin-bottom:0pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s6DB91820 { text-align:center } .s8BB62139 { margin-right:auto; margin-left:auto; border-collapse:collapse } .sAC521AF { border:0.75pt solid #949494; padding:1.02pt 5.03pt; background-color:#dfdfdf } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s644D8EA5 { font-family:Arial; font-weight:bold; font-style:italic; color:#474747 } .sD8E76205 { border:0.75pt solid #949494; padding:1.02pt 5.03pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 30 August 2016   THIRD SECTION Application no. 27471/15 Aleksandra MIRKOVIĆ against Serbia and 12 other applications (see list appended) STATEMENT OF FACTS A list of the applicants is set out in the appendix. A.     The circumstances of the case      The facts of the case, as submitted by the applicants, may be summarised as follows.   1.     Background to the cases        The applicants are all employees of correctional facilities in Serbia. Because of the hardships they endure in their roles, according to Serbian law they are eligible for certain employment benefits, such as benefits concerning the calculation of their old-age pensions and salary increases.      In general, pension and work related issues in Serbia are regulated by two laws: 1) the Old-Age Pension and Disability Insurance Act ( Zakon o penzionom i invalidskom osguranju , published in the Official Gazette of the Republic of Serbia -OG RS- no. 34/2003, amendments published in the Official Gazette nos. 64/2004 – Constitutional court decision, 84/2004 – other law, 85/2005, 101/2005 – other law, 63/2006 – Constitutional court decision, 5/2009, 107/2009, 101/2010, 93/2012, 62/2013, 108/2013, 75/2014 and 142 / 2014); and 2) the Labour Act ( Zakon o radu , published in the Official Gazette of the Republic of Serbia -OG RS- no. 24/2005, amendments published in the Official Gazette nos. 61/2005, 54/2009, 32/2013 and 75/2014). However, in regards to the employees of correctional facilities, the old-age pension and work related issues are also regulated by: 1) the Execution of Criminal Sanctions Act ( Zakon o izvršenju krivičnih sankcija , published in the Official Gazette of the Republic of Serbia -OG RS- no. 85/2005, amendments published in the Official Gazette no.   72/2009); and 2) the Directive on personal coefficients for the calculation and payment of salaries to persons employed within the Ministry of Justice’s directorate for the execution of criminal sanctions ( Uredba o koeficijentima za obračun i isplatu plata u Upravi za izvršenje krivičnih sankcija , published in the Official Gazette of the Republic of Serbia -OG RS- no. 16/2007, amendments published in the Official Gazette nos.   21/2009, 1/2011 – Constitutional Court decision, 83/2011 and 102/2011 – hereinafter “the Directive”).      Under Article 263 of the Execution of Criminal Sanctions Act, the director and other employees of the directorate for the execution of criminal sanctions ( Uprava za izvršenje krivičnih sankcija ) are entitled to an accelerated accumulation of pension rights: this means that twelve months of full-time employment is counted as sixteen months of full-time employment in the civilian economy when their old-age pensions are calculated. Also, the personal coefficient of employees in correctional facilities may, according to the said Article, be increased by up to 30%. The posts to which the accelerated accumulation of pension rights applies are determined by the minister responsible for the judiciary and the minister responsible for pension and disability insurance.      In accordance with Article 7 § 3 of the Directive, in the period between 1 January 2007 and 14 January 2011 the personal coefficients of the applicants were increased by 10% instead of 30%.      On 18 October 2010, the Constitutional Court adopted decision no. IU 63/2007 stating that Article 7 § 3 of the Directive was unconstitutional. The said Article was deleted. The amendments to the Directive entered into force on 14 January 2011. As of 15 January 2011 the applicants’ personal coefficients were increased by 30%.   2.     Particular circumstances   (a) Proceedings before the basic courts        Throughout 2011 and 2012 the applicants lodged separate civil claims against the Republic of Serbia with the basic courts ( osnovni sud ), asking for payments of the difference between the salary received while Article 7 § 3 of the Directive had still been in force and the one they were entitled to (the values of the first, second, fourth, fifth, sixth, seventh, eight, thirteenth applicants’ claims, at least, would appear to have exceeded 500,000 Serbian dinars (RSD)).   (b) Proceedings before the courts of appeal        Certain applicants were successful before the basic courts; others were not. However, all the applicants were unsuccessful at second instance before the courts of appeal (individual decisions of the applicants before the courts of appeal are listed in the Appendix at the end of this document).      In their reasoning, the courts of appeal either held that the applicants had failed to properly apprise the domestic authorities, or that nothing had been wrong with the calculation of the applicants’ salaries because they had been paid in accordance with the Directive. However, in numerous other decisions the courts of appeal ruled in favour of the applicants’ colleagues. The decisions the applicant’s referred in their cases are the following: Decision no. Gž1. 43/11, delivered by the Kragujevac Court of Appeal on 15 March 2011; Decision no. Gž1. 702/12, delivered by the Niš Court of Appeal on 27 April 2012; Decision no. Gž1. 3549/13, delivered by the Novi Sad Court of Appeal on 24 December 2013; Decision no. Gž1. 2444/13, delivered by the Niš Court of Appeal on 27 December 2013; Decision no. Gž1. 3034/14, delivered by the Kragujevac Court of Appeal on 2 October 2014; Decision no. Gž1. 2379/14, delivered by the Novi Sad Court of Appeal on 7 November 2014.   (c) Proceedings before the Supreme Court of Cassation   On 27 March 2013 the Novi Sad Court of Appeal, in accordance with Article 395 of The Civil Procedure Act (Zakon o parničnom postupku, published in the Official Gazette of the Republic of Serbia – OG RS – 125/04 and 111/2009), asked to the Supreme Court of Cassation to amend its decision no. Gž1-2352/12 of 12 December 2012 and harmonise the inconsistent case-law of the courts of appeal. In the decision of the Novi Sad Court of Appeal the plaintiff’s request for the the difference between the salary received while Article 7 § 3 of the Directive had still been in force and the one they were entitled to. Acting in accordance with Articles 395 and 399 of The Civil Procedure Act, on 26 September 2013 the Supreme Court of Cassation pronounced that the Novi Sad Court of Appeal had incorrectly applied and interpreted domestic law, and that the decision should have been rendered in the plaintiff’s favour. Consequently, the Supreme Court of Cassation ordered a retrial.   (d) Proceedings before the Constitutional Court   In the period between 26 September 2012 and 13 May 2014 the applicants appealed to the Constitutional Court. In its decisions on the applicants’ appeals the Constitutional Court found no violation of Article 6 § 1 in their cases. It stated either: that because the decisions in the applicants’ cases had been adopted before the Supreme Court of Cassation had made the decision of the Supreme Court of 26 September 2013, the inconsistency in the domestic case-law could not have affected the applicants (in the case of the first, tenth, eight and fifth applicants the courts of appeal ‘ decisions were, however, adopted on 3, 16 and 30 October 2013, and 13 March 2014 respectively); or that the decisions of the Supreme Court of Cassation were not proof of inconsistent case-law. Conversely, on 13 January 2016 the Constitutional Court found a violation of article 6 § 1 in a case with the same facts as in the applicants’. It found that because of the inconsistent domestic case-law in regards to the payment of damages for the delayed payment of the same salary increase granted to employees of correctional facilities, the right to a fair trial of a certain D.B. had been violated. D.B was an employee of the Belgrade Special Prison Hospital ( Specijalna zatvorska bolnica Beograd ). After Article 7 § 3 of the Directive was judged to be unconstitutional and deleted from the Directive, she instigated civil proceedings before the Belgrade First Basic Court asking for the payment of the difference between the salary received while Article   7   §   3 of the Directive had still been in force and the one they were entitled to. The Belgrade First Basic Court adopted decision no. P1.5566/11 of 10 May 2011 in which it rejected D.B.’s claims. D.B. appealed against that decision to the Court of Appeal in Belgrade. Delivering decision no. Gž1. 5335/13 of 19 September 2013 the Belgrade Court of Appeal rejected D.B.’s appeal. On 21 October 2013 D.B. lodged a constitutional appeal (Už–8442/2013). D.B. was represented before the Constitutional Court and other domestic courts by the same lawyer who is representing the first, second, fifth, sixth and thirteenth applicant before this Court. D.B.’s claims and appeals appear to be same as the applicants; the time-frame also appears to be the same. Specifically, the Court of Appeal adopted a decision in D.B.’s case on 19 September 2013. D.B. appealed to the Constitutional Court on 21   October 2013. In the decision in D.B.’s case, the Constitutional Court stated, in particular, that   “The fact that the courts of last instance have been adopting discordant decisions while deciding on the same factual and legal issues has created a situation of legal uncertainty for the appellant. In the Constitutional Court’s view those circumstances are enough for the Constitutional Court to find a violation of a right to equal protection.” B.     Relevant domestic law and practice 1. Serbian pension system The Serbian pension system is based on two pillars: firstly, the public pension system, which is a mandatory pension and disability insurance system on the basis of intergenerational solidarity (pay-as-you-go); and secondly, voluntary private pension insurance (private pension funds). In the public pension system pensions are determined in accordance with a defined benefit scheme and financed on the basis of: i) social contributions (22% of gross wages: 11% by the employer and 11% by the employee) and ii) transfers from the State budget (close to 50% of the total expenditure of the Pensions and Disability Insurance Fund is financed from the State budget). The defined benefit scheme is determined by the previously stipulated formula. Serbia introduced a variation to the defined benefit system called “the points system”. In the points system a pension benefit is defined as a product of a number of personal points and the general point value. The personal-points system represents the multiplication of a worker’s personal coefficient and his or her years of service. A personal coefficient is the average of his or her annual personal coefficients. The annual personal coefficient represents the ratio of total earnings of the insured person for each calendar year to the average annual earnings in the country for the same calendar year. The value of a pension benefit is dependent on the size of the personal coefficient. 2. Execution of Criminal Sanctions Act ( Zakon o izvršenju krivičnih sankcija , published in the Official Gazette of the Republic of Serbia -OG RS- no. 85/2005, amendments published in the Official Gazette no. 72/2009) The relevant Article reads as follows: Article 263 “The director and employees of the directorate shall be entitled to an accelerated pension plan under which each twelve months of service shall count as up to sixteen months of pensionable seniority. The coefficient of the persons referred to in paragraph 1 shall, in proportion to the degree of increase of seniority, be increased by up to 30%. The size of the coefficient for calculation and payment of salaries in the directorate shall be determined by the Government. The jobs with accelerated pension plans shall be agreed mutually by the minister responsible for the judiciary and the minister responsible for pension and disability insurance affairs.” 2. The Civil Procedure Act ( Zakon o parničnom postupku, published in the Official Gazette of the Republic of Serbia – OG RS – 125/04 and 111/2009)     The relevant articles read as follows: Article 395 “Exceptionally, an appeal on points of law shall be permitted against a second-instance decision which is not liable to an appeal on points of law under the provisions referred to in Article 394 of this Law, if, in the assessment of the Court of Appeal on the admissibility of an appeal on points of law, this is required to examine legal issues in the common interest, achieve uniformity of application of the law in court judgments, or when a new legal interpretation is required.” Article 399 “The court of revision shall examine solely the part of a judgment contested by the application for an appeal on points of law and within the limits of the reasons stated in the appeal on points of law, and shall, of their own motion, take due care of a substantial violation of the civil procedure rules pursuant to Article 361, paragraph 2, subparagraph 9 of this Law, and about the correct application of the law.” Article 407 “(1) If the court of revision establishes that substantive law was applied incorrectly, it shall render a judgment granting an application for review and reverse the contested judgment. (2) If the court of revision finds that the facts were established incompletely due to incorrect application of substantive law, and consequently no grounds for the contested judgment to be reversed existed, it shall render a ruling to grant an application for review and, entirely or partially, set aside the judgments of a court of first instance and a court of second instance, or solely the judgment of a former. The Supreme Court of Cassation shall consequently refer the case for retrial to the same or another court chamber of the court of first instance, or of the court of second instance, or another competent court.” 3.     The Courts Organisation Act ( Zakon o uređenju sudova, published in the Official Gazette of the Republic of Serbia – OG RS – nos.   116/2008, 104/2009, 101/2010, 31/2011 – other law, 78/2011 – other law, 101/2011, 101/2013, 106/2015, 40/2015 – other law and 13/2016)     Article 43 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 the panels ( veća ) of the division in question. 4.     The Rules of Court ( Sudski poslovnik , published in the Official Gazette of the Republic of Serbia – OG RS – nos. 110/2009, 70/2011, 19/2012, 89/2013, 96/2015, 104/2015, 113/2015 – addendum and 39/2016)     Articles 27, 28, 29 and 31 provide, inter alia , that: (i) courts with a larger number of judges may have case-law departments entrusted with the monitoring of relevant domestic and international case-law; (ii) courts must keep a register of all legal opinions which are deemed to be of significance for case-law; (iii) courts may hold joint consultations on case-law related issues, including with the Supreme Court of Cassation; and (iv) the case-law departments shall prepare proposals for judges’ plenary sessions with a view to securing harmonisation of the relevant case-law. COMPLAINT The applicants complain about the rejection of their own civil claims by the domestic courts and the simultaneous acceptance by the same courts of identical claims filed by other plaintiffs under the following articles:   The first, second, fourth, fifth, sixth, and thirteenth applicants – under Articles 6 and 14 of the Convention, and Article 1 of Protocol No.   12 to the Convention The third applicant – under Articles 6 and 14 of the Convention, Article 1 of Protocol No. 1 to the Convention and Article 1 of Protocol No.   12 to the Convention The seventh, eighth, ninth, tenth, eleventh, and twelfth applicants – under Article 6 of the Convention   QUESTIONS TO THE PARTIES The Court takes the view that the applications raise issues under Article   6   § 1 of the Convention.   Have all the applicants exhausted available domestic remedies, as required by Article 35 § 1 of the Convention?   In the light of the applicants’ allegation that (i) the Serbian courts of appeal, and (ii) the Constitutional Court, applied patently different case-law to identical civil claims, did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?   In the affirmative, was the principle of legal certainty implicit in this provision complied with (see, for example, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 49-58, 20 October 2011)?     Appendix No Application No Lodged on Applicant Date of birth Place of residence Represented by Court of appeal decision adopted Constitutional Court appeal lodged Constitutional Court decision adopted Constitutional Court decision delivered 1. 27471/15 29/05/2015 Aleksandra MIRKOVIĆ 04/03/1974 Belgrade Rajka JASIKA 3 October 2013 25 November 2013 23 October 2014 3 December 2014 2. 27288/15 29/05/2015 Biljana SARIĆ 24/06/1973 Beograd Rajka JASIKA 15 May 2013 24 July 2013 23 October 2014 3 December 2014 3. 27751/15 02/06/2015 Sanja POPOVIĆ-RADIVOJEVIĆ 22/08/1975 Valjevo / 15 August 2012 26 September 2012 23 October 2014 3 December 2014 4. 27779/15 29/05/2015 Branislav MARKOVIĆ 01/04/1960 Požarevac / 29 August 2012 13 November 2012 23 October 2014 3 December 2014 5. 27790/15 29/05/2015 Milica BOGIČEVIĆ 13/07/1976 Zemun Rajka JASIKA 19 March 2014 13 May 2014 23 October 2014 3 December 2014 6. 28156/15 29/05/2015 Gordana MASLOVARIĆ 08/04/1970 Beograd Rajka JASIKA 23 March 2013 17 May 2013 30 October 2014 3 December 2014 7. 28418/15 05/06/2015 Velimir VIDIĆ 12/08/1954 Beograd Predrag AVRAMOVIĆ 1 March 2013 16 May 2013 23 October 2014 4 December 2014 8. 30893/15 17/06/2015 Nebojša NEJKOVIĆ 09/02/1958 Požarevac Ružica LEKIĆ 30 October 2013 10 December 2013 13 November 2014 3 December 2014 9. 30906/15 17/06/2015 Aleksandra PEŠIĆ 07/11/1980 Požarevac Jelena JEVREMOVIĆ 30/11/1977 Malo Crniće Ružica LEKIĆ 4 April 2013 21 May 2013 23 October 2014 3 December 2014 10. 32933/15 16/06/2015 Željko GRADIŠKA 29/06/1959 Pozarevac Milan VUČIĆEVIĆ 09/01/1961 Požarevac Draško VELJKOVIĆ 10/08/1962 Kraljevo / 16 October 2013     22 November 2012     12 March 2013     10 December 2013     15 January 2013     13 May 2013     23 October 2014     23 March 2015     23 October 2014     3 December 2014     8 April 2015     15 December 2014     11. 35780/15 15/07/2015 Branislava STOJANOVIĆ 25/07/1955 Požarevac Ružica LEKIĆ 13 September 2012 22 October 2012 29 January 2015 9 February 2015 12. 40646/15 21/07/2015 Nevenka BIJELIĆ 13/05/1964 Požarevac Vesna VULEVIC 18/03/1961 Požarevac Zorica JOVANOVIĆ 27/06/1954 Požarevac Ružica LEKIĆ 11 September 2013 16 October 2013 11 February 2015 26 February 2015 13. 55066/15 23/10/2015 Dejan STEPANOVIĆ 01/02/1967 Belgrade Rajka JASIKA 5 June 2013 5 August 2013 25 March 2015 20 April 2015