CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 juin 2018

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SERBIA   (Applications nos. 27471/15 and 12 others – see appended list)             JUDGMENT   This version was rectified on 13 November 2018 under Rule 81 of the Rules of Court .       STRASBOURG   26 June 2018     FINAL   03/12/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Mirković and Others v. Serbia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Branko Lubarda,   Dmitry Dedov,   Pere Pastor Vilanova,   Alena Poláčková,   Jolien Schukking,   María Elósegui, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 5 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in thirteen separate applications against Serbia (nos.   27471/15, 27288/15, 27751/15, 27779/15, 27790/15, 28156/15, 28418/15, 30893/15, 30906/15, 32933/15, 35780/15, 40646/15 and 55066/15) lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eighteen Serbian nationals. 2.     A list of applicants, as well as their additional personal details, the dates of introduction of their complaints before the Court, and information regarding their legal representation is set out in the appendix. Applications nos. 30906/15, 32933/15 and 40646/15 have two, three and three applicants, respectively. 3.     The Serbian Government (“the Government”) were represented by their Agent, Ms N. Plavšić. 4.     Alleging rejections of their civil claims by the domestic courts and the simultaneous acceptance of identical claims lodged by other claimants, the applicants complain that there have been breaches of their right to legal certainty. Relying on essentially the same facts, they also allege violations of their right to a fair trial, their right to peaceful enjoyment of their possessions, and violations of the prohibition on discrimination. 5.     On 30   August 2016 the applications were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 1.     Background to the cases 6.     The applicants were all employees of the Ministry of Justice’s directorate for the execution of criminal sanctions in Serbia. Because of the hardships prison staff endure during service at penal institutions in Serbia, Serbian law provides that they are eligible for certain employment benefits, such as benefits concerning the calculation of their old-age pensions and salary increases. 7.     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 osiguranju , published in the Official Gazette of the Republic of Serbia no. 34/2003, as amended); and 2) the Labour Act ( Zakon o radu , published in the Official Gazette of the Republic of Serbia no. 24/2005, as amended). However, in regards to employees of correctional facilities, 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 individuals 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 (implementing decision of the Constitutional Court of 18   November 2010), 83/2011 and 102/2011 – hereinafter “the   Directive”). 8.     Under Article 262 of the Execution of Criminal Sanctions Act, the director and other employees of the directorate for the execution of criminal sanctions 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. 9.     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 and their colleagues were increased by 10% instead of 30% as provided by the Execution of Criminal Sanctions Act. 10.     On 18   November 2010, the Constitutional Court adopted a decision (no. IU 63/2007) stating that Article   7 §   3 of the Directive was unconstitutional. The said Article was struck down. The amendments to the Directive entered into force on 14   January 2011. As of 14   January 2011 the personal coefficients were increased by 30%. 11.     Between 1   January 2007 and 14   January 2011, while this unconstitutional norm ( neustavna odredba ) was in force, the employees of the Ministry of Justice’s directorate for the execution of criminal sanctions received lower salaries that they had been entitled to. For that reason, their old-age pensions were also reduced. 2.     Relevant circumstances of the cases (a)     Judgments of the courts of first instance and courts of appeal 12.     Throughout 2011, 2012 and 2013 the applicants, as well as many of their colleagues, lodged with various courts of first instance ( osnovni sudovi ) separate civil claims against the Republic of Serbia, asking for compensation for the damage caused while the four-year-long unconstitutional norm pertained. 13.     Some of the courts of first instance upheld the claimants’ applications for compensation, while others dismissed them. Decisions of the courts of first instance were appealed against either by claimants or the defendant. 14 .     Certain claimants were successful before the courts of appeal; yet all the applicants were unsuccessful. In particular, the applicants’ complaints were rejected by the courts of appeal in Belgrade and Kragujevac for the applicants’ failure to pursue the proper avenue of redress. In the view of these courts the applicants should have first initiated administrative proceedings and afterwards lodged a complaint with the civil courts. In any event, the Belgrade and Kragujevac Courts of Appeal also held that they did not have jurisdiction to decide on the applicants’ cases. 15.     In contrast, in the following cases other courts of appeal or chambers thereof ruled in favour of the applicants’ colleagues: 1)      The Kragujevac Court of Appeal (for example: decisions nos.   Gž1.   43/11 of 15   March 2011 and Gž1. 3034/14 of 2   October 2014); 2)      The Niš Court of Appeal (for example: Gž1. 2444/13 of 27   December 2013); 3)      The Novi Sad Court of Appeal (for example: Gž1. 3549/13 of 24   December 2013 and Gž1. 2379/14 of 7   November 2014). 16.     In the above-mentioned decisions the courts of appeal upheld the claimants’ requests, stating that the applicants’ colleagues should be paid the differences in their salaries together with interest on the unpaid amounts, and the contributions in respect of the their old-age pensions, for the period during the which unconstitutional norm had been applied. (b)     Decision of the Supreme Court of Cassation ( Vrhovni kasacioni sud) no.   Rev.2 393/2013 of 26   September   2013 17 .     Given the differences in adjudication on the matter, on 27   March   2013 the Novi Sad Court of Appeal requested, 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), that the Supreme Court of Cassation amend its judgment no. Gž1-2352/12 of 12   December 2012 and harmonise the case-law of the courts of appeal in matters concerning the payment of the differences between the salaries claimants had received and those they had been entitled to. 18 .     On 26   September 2013, in response to the said request, the Supreme Court of Cassation found, acting in accordance with Articles   395 and   399 of the Civil Procedure Act, that there was an interest of general concern to deal with this issue. It held that the Novi Sad Court of Appeal in delivering the judgment of 12   December   2012 had incorrectly applied and interpreted domestic law. The Supreme Court of Cassation held that the judgment should have been rendered in the claimant’s favour and, accordingly, set the judgment of the Novi Sad Court of Appeal aside. 19.     After the impugned decision, the Courts of Appeal in Novi Sad, Niš and Kragujevac assumed the following approach: “... as the Supreme Court of Cassation explicitly stated in its decisions nos. Rev. 2 br. 393/2013 of 26   September 2013 and Rev. br. 983/2012 of 26   September 2013, State organs [were engaging in what had to be considered] unlawful work, as the Constitutional Court failed to adopt a decision [regarding] in which manner the consequences of the unconstitutional norm should have been overcome[, and] the Government of the Republic of Serbia, as the regulatory authority, within the scope of their jurisdiction did not secure the execution of the impugned decision of the Constitutional Court concerning the disputed period during which the claimant’s salary was unconstitutionally and illegally reduced, the claimant had a right to lodge a claim for compensation for damage with the civil courts, and the civil courts are in charge of deciding on the matter in accordance with Article 1 of the Civil Procedure Act.” (cited from the judgment no. Gž1. 2444/13 of 27   December 2013, p.   4) (c)     Decisions of the Constitutional Court 20.     In the period between 26   September 2012 and 13   May 2014 the applicants appealed to the Constitutional Court. 21 .     They complained, inter alia, of the inconsistent domestic case-law of the Serbian courts which had caused the rejection of their claims and the simultaneous acceptance of identical claims lodged by their colleagues. Relying on Article 6 of the Convention or Articles   32 and   36 of the Constitution (provisions that correspond to Article   6 of the Convention) the applicants asked the Constitutional Court to find that there had been a breach of the principle of legal certainty as an integral part of the right to a fair trial. 22.     Between 23   October   2014 and 25   March   2015, the Constitutional Court rejected the applicants’ constitutional appeals as unsubstantiated. 3.     Specific circumstances of each applicant’s case   23.     The facts relating to each applicant may be summarised as follows: (a)     As regards application no.   27471/15 (Ms   Aleksandra Mirković – the first applicant) 24.     At the relevant time, the first applicant was an employee of Belgrade Special Prison Hospital. 25.     On 20   December 2011 she lodged a civil claim with the First Basic Court ( Prvi opštinski sud ) in Belgrade asking for payment of the difference between the salary she had received and the one she had been entitled to. 26.     On 3   June 2013 the first-instance court rejected her claim. On 3   October   2013 the Belgrade Court of Appeal upheld that judgment following an appeal by the applicant. 27.     The applicant lodged a constitutional appeal on 25   November   2013 complaining, inter alia, of the existence of inconsistent domestic case-law of Serbian courts, in particular the rejection of her own claim and the simultaneous acceptance of identical claims lodged by her colleagues, and asked the Constitutional Court to find that there had been a breach of the principle of judicial certainty as an integral part of her right to a fair trial. She provided the Constitutional Court with copies of several judgments in support of her allegation regarding the inconsistent case-law. 28.     On 12   June   2014 she provided the Constitutional Court with the decision of the Supreme Court of Cassation of 26   September 2013. 29 .     On 23   October   2014 the Constitutional Court rejected the applicant’s constitutional appeal and decided not to evaluate the decision of the Supreme Court of Cassation of 26   September 2013 because it had been adopted after the judgment of the Belgrade Court of Appeal of 3   October   2013 had been adopted in the applicant’s case ( Ustavni sud nije posebno cenio imajući u vidu da ona potiče iz perioda nakon donošenja osporene presude Apelacionog suda u Beogradu GŽ1   556/13 od 3.   oktobra   2013 . g odine. ) (b)     As regards application no.   27288/15 (Ms   Biljana Sarić – the second applicant) 30.     At the relevant time, the second applicant was an employee of Belgrade Special Prison Hospital. On 20   December 2011 she lodged a civil claim with the First Basic Court in Belgrade. Her complaint was rejected on 8   February 2013. The judgment of the first-instance court was upheld by the Belgrade Court of Appeal on 15   May   2013. 31.     On 24   July 2013 the applicant lodged a constitutional appeal. She amended her appeal following the decision of the Supreme Court of Cassation of 26   September 2013 on 12   June   2014. 32.     On 23   October   2014 the Constitutional Court rejected the applicant’s constitutional appeal for the same reason as in the case of the first applicant. (c)     As regards application no.   27751/15 (Ms   Sanja Popović-Radivojeviċ – the third applicant) 33.     At the relevant time, the third applicant was an employee of Juvenile Detention Centre ( Kazneno-popravni zavod za maloletnike ) in Valjevo. On an unspecified date in 2011, she lodged a civil claim with the Basic Court in Valjevo. On 16   March   2012 the Basic Court ruled in her favour. This judgment was overturned by the Belgrade Court of Appeal on 15   August   2012. 34 .     On 26   September   2012 the applicant lodged a constitutional appeal. She provided the Constitutional Court with the copy of one relevant judgment in which the Kragujevac Court of Appeal had accepted a similar claim to her own. 35 .     On 23   October   2014 the Constitutional Court rejected her appeal for failure to adequately substantiate her complaint. In particular it held that one relevant judgment submitted by the applicant could not amount to proof of either profound or long-standing differences in the adjudication of the courts’ ruling at final instance in cases similar to the applicant’s. (d)     As regards application no.   27779/15 (Mr   Branislav Marković – the fourth applicant) 36.     At the relevant time, the fourth applicant was an employee of the prison in Požarevac-Zabela ( Kazneno-popravni zavod Požarevac-Zabela ). On 14   July 2011, the applicant lodged a civil claim with the Basic Court in Požarevac. On 8   February   2012 the Basic Court ruled in his favour. This judgment was overturned by Belgrade Court of Appeal on 29   August   2012. 37 .     On 13   November   2012 the applicant lodged a constitutional appeal, alleging a violation of his right to a fair trial. He failed to provide the Constitutional Court with copies of any of the judgments in which the civil courts had allegedly accepted claims similar to his own. 38 .     On 23   October   2014 the Constitutional Court rejected the applicant’s constitutional appeal as unsubstantiated. (e)     As regards application no.   27790/15 (Ms   Milica Bogićević – the fifth applicant) 39.     At the relevant time, the fifth applicant was an employee of Belgrade Special Prison Hospital. On 20   December   2011, the applicant lodged a civil claim with the First Basic Court in Belgrade. On 23   January   2013 the First Basic Court ruled in her favour. This judgment was overturned by Belgrade Court of Appeal on 19   March   2014. 40 .     On 13   May   2014 the applicant lodged a constitutional appeal. She provided the Constitutional court with the copy of one relevant judgment in which the Novi Sad Court of Appeal had accepted a claim similar to her own. 41 .     On 23   October   2014 the Constitutional Court rejected her appeal for the same reason as in the case of the third applicant. (f)     As regards application no. 27288/15 (Ms   Gordana Maslovarić – the sixth applicant) 42.     At the relevant time, the sixth applicant was an employee of Belgrade Special Prison Hospital. On 20   December   2011 she lodged a civil claim with the First Basic Court in Belgrade. Her complaint was rejected on 25   December   2012. The judgment of the first-instance court was upheld by the Belgrade Court of Appeal on 20   March   2013. 43.     On 17   May   2013 the applicant lodged a constitutional appeal. She amended her appeal following the decision of the Supreme Court of Cassation of 26   September   2013 on 12   June   2014. 44.     On 30   October   2014 the Constitutional Court rejected the applicant’s constitutional appeal for the same reason as in the case of the first applicant. (g)     As regards application no.   28418/15 (Mr   Velimir Vidić – the seventh applicant) 45.     At the relevant time, the seventh applicant was an employee of Penitentiary institution in Belgrade-Padinska Skela ( Kazneno-popravni zavod u Beogradu – Padinska Skela ) and the prison in Požarevac-Zabela. On 30   November   2011 he lodged a civil claim with the First Basic Court in Belgrade. His complaint was rejected on 3   December   2012. The judgment of the first-instance court was upheld by the Belgrade Court of Appeal on 1   March   2013. 46.     On 16   May   2013 the applicant lodged a constitutional appeal. He amended his appeal following the decision of the Supreme Court of Cassation of 26   September   2013 on 21   March   2014. 47.     On 23   October   2014 the Constitutional Court rejected the applicant’s constitutional appeal for the same reason as in the case of the first applicant. (h)     As regards application no.   30893/15 (Mr   Nebojša Nejković – the eighth applicant) 48.     At the relevant time, the eighth applicant was an employee of the prison in Požarevac-Zabela. On an unspecified date in 2013 he lodged a   civil claim with the Basic Court in Požarevac. His complaint was rejected on 21   August   2013. The judgment of the first-instance court was upheld by the Belgrade Court of Appeal on 30   October   2013. 49.     On 10   December   2013 the applicant lodged a constitutional appeal. He amended his appeal following the decision of the Supreme Court of Cassation of 26   September 2013 on 27   February   2014. 50.     On 13   November   2014 the Constitutional Court rejected the applicant’s constitutional appeal for the same reason as in the case of the first applicant. (i)     As regards application no.   30906/15 (Ms   Aleksandra Pešić – the ninth applicant; and Ms   Jelena Jevremović – the tenth applicant) 51.     At the relevant time, the ninth and the tenth applicants were employees of Penitentiary institution in Požarevac ( Kazneno-popravni zavod za žene ). On an unspecified date in 2011, the applicants lodged a joint civil claim with the Basic Court in Požarevac. On   13 January 2012 the Basic Court ruled in their favour. This judgment was overturned by Belgrade Court of Appeal on 4   April 2013. 52.     On 21   May 2013 the applicants lodged a constitutional appeal. They amended the appeal following the decision of the Supreme Court of Cassation of 26   September 2013 on 27   February   2014. 53.     On 23   October   2014 the Constitutional Court rejected the applicants’ constitutional appeal for the same reason as in the case of the first applicant. (j)     As regards application no.   32933/15 (i)     Mr   Željko Gradiška – the eleventh applicant 54.     At the relevant time, the eleventh applicant was an employee of the women’s prison in Požarevac. On an unspecified date in 2011, the applicant lodged a civil claim with the Basic Court in Požarevac. On 24   February 2012 the Basic Court ruled in his favour. This judgment was overturned by Belgrade Court of Appeal on 16   October   2013. 55.     On 10   December   2013 the applicant lodged a constitutional appeal. He subsequently amended the appeal with the decision of the Supreme Court of Cassation of 26   September 2013. 56 .     On 23   October 2014 the Constitutional Court rejected the applicant’s constitutional appeal because in its view the decision of the Supreme Court of Cassation could not have been considered as proof of inconsistent case-law of courts ruling at final instance ( revizijsko rešenje ne može biti dokaz o različitom postupanju sudova najviše instance ). (ii)     Mr   Milan Vučićević – the twelfth applicant 57.     At the relevant time, the twelfth applicant was an employee of the prison in Požarevac-Zabela. On an unspecified date in 2012, the applicant lodged a civil claim with the Basic Court in Požarevac. His complaint was rejected on 2   October   2012. The judgment of the first-instance court was upheld by the Belgrade Court of Appeal on 22   November   2012. 58 .     On 15   January   2013 the applicant lodged a constitutional appeal. He failed to provide the Constitutional Court with copies of any of the judgments in which the civil courts at final instance had allegedly accepted claims similar to his own. 59 .     On 23   March   2015 the Constitutional Court rejected the applicant’s constitutional appeal as unsubstantiated. The Constitutional Court failed to separately address his complaint concerning the divergent case-law. (iii)     Mr   Draško Veljković – the thirteenth applicant 60.     At the relevant time, the thirteenth applicant was an employee of Kraljevo District Prison ( Okružni zatvor u Kraljevu ). On an unspecified date in 2011, the applicant lodged a civil claim with the Basic Court in Kraljevo. On 23   December   2011 the Basic Court ruled in his favour. This judgment was overturned by Kragujevac Court of Appeal on 12   March   2013. 61.     On 13   May 2013 the applicant lodged a constitutional appeal. On several occasions, between 30 December   2013 and 19   August   2014, he amended the appeal, adding copies of a few other judgments in which the civil courts at final instance had accepted claims similar to his own, and adding the decision of the Supreme Court of Cassation of 26   September   2013. 62.     On 23   October   2014 the Constitutional Court rejected the applicant’s constitutional appeal for the same reason as in the case of the first applicant. (k)     As regards application no.   35780/15 (Ms   Branislava Stojanović – the fourteenth applicant) 63.     At the relevant time, the fourteenth applicant was an employee of the women’s prison in Požarevac. On an unspecified date in 2012 she lodged a   civil claim with the Basic Court in Požarevac. Her complaint was rejected on 22   May   2012. The judgment of the first-instance court was upheld by the Belgrade Court of Appeal on 13   September   2012. 64.     On 22   October   2012 the applicant lodged a constitutional appeal. She subsequently amended the appeal following the decision of the Supreme Court of Cassation of 26   September 2013. 65.     On 29   January   2015 the Constitutional Court rejected the applicant’s constitutional appeal for the same reason as in the case of the first applicant. (l)     As regards application no.   40646 (Ms   Nevenka Bijelić – the fifteenth applicant; Ms   Vesna Vulević – the sixteenth applicant; and Ms   Zorica Jovanović – the seventeenth applicant) 66.     At the relevant time, the fifteenth, the sixteenth and the seventeenth applicants were employees of the women’s prison in Požarevac. On an unspecified date in 2012, the applicants lodged a joint civil claim with the Basic Court in Požarevac. Their complaint was rejected on 29   May   2013. The judgment of the first-instance court was upheld by the Belgrade Court of Appeal on 11   September   2013. 67.     On 16   October   2013 the applicants lodged a constitutional appeal. They subsequently amended the appeal, adding copies of a few other judgments in which the civil courts ruling at final instance had accepted claims similar to their own, and adding the decision of the Supreme Court of Cassation of 26 September 2013. 68.     On 11   February   2015 the Constitutional Court rejected the applicants’ constitutional appeal for the same reason as in the case of the first applicant. (m)     As regards application no.   55066/15 (Mr   Dejan Stepanović – the eighteenth applicant) 69.     At the relevant time, the eighteenth applicant was an employee of Belgrade Special Prison Hospital. On 20   December 2011 he lodged a civil claim with the First Basic Court in Belgrade. His complaint was rejected on 26   February   2013. The judgment of the first-instance court was upheld by the Belgrade Court of Appeal on 5   June   2013. 70.     On 5 August   2013 the applicant lodged a constitutional appeal. He amended his appeal following the decision of the Supreme Court of Cassation of 26 September 2013 on 12   June   2014. 71.     On 25   March   2015 the Constitutional Court rejected the applicant’s constitutional appeal for the same reason as in the case of the first applicant. II.     RELEVANT DOMESTIC LAW A.     Civil Procedure Act ( Zakon o parničnom postupku – published in the Official Gazette of the Republic of Serbia nos.   125/04 and 111/2009) 72 .     The Civil Procedure Act was in force from 22   February   2005 until 1   February   2012 (hereinafter   “the former Civil Procedure Act”). However, in accordance with Article   506 §   1 of the new Civil Procedure Act ( Zakon o parničnom postupku , published in the Official Gazette of the Republic of Serbia nos.   72/2011, 49/2013 – Constitutional Court decision, 74/2013 – Constitutional Court decision 55/2014 – hereinafter:   “the new Civil Procedure Act”) provisions of the former Civil Procedure Act are applicable to all proceedings which commenced before the new Civil Procedure Act entered into force. Article   1 “This Act shall govern the rules of proceedings for providing legal protection of the court applied in acting and adjudicating upon civil-law disputes arising from personal, family, labour, business, property and other civil legal relations, with and exception of the disputes in respect of which another type of proceedings is provided in accordance with the specific law.” 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 ( revizijski sud ) 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 Act, 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 owing 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, and 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.” B.     Civil Procedure Act ( Zakon o parničnom postupku – published in the Official Gazette of the Republic of Serbia nos.   72/2011, 49/2013 – Constitutional Court decision, 74/2013 – Constitutional Court decision, 55/2014) 73 .     The new Civil Procedure Act has been in force since 1   February   2012. It applies to all proceedings which commenced after its entry into force, or to proceedings which were reopened after its entry into force. The relevant provisions read as follows: Article   404 “An appeal on points of law shall exceptionally be permitted in the event of a   wrongful implementation of substantive law and against a second-instance judgment which could not be disputed by an appeal on points of law if, according to the estimates of the Supreme Court of Cassation, it would be necessary to consider legal issues of general interest or legal issues in the interest of equal rights of citizens, for the purpose of the harmonisation of domestic case-law, as well as, if necessary, for the purpose of providing a new interpretation of law (special appeal on points of law) [ posebna revizija ]. The Supreme Court of Cassation shall decide on the admissibility and legitimacy of an appeal on points of law from paragraph 1 hereof by deliberating in a panel of five judges.” Article   408 “The Supreme Court of Cassation 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, pay due attention to a substantial violation of the civil-procedure rules pursuant to Article   374, paragraph   2, subparagraph   2 of this Act, and about the correct application of the law. “ Article   426 “The proceedings in which a final decision was adopted by a court may be opened for a retrial following an application by a party if: ... 11) the party has an opportunity to make use of a judgment of the European Court of Human Rights in which a violation of human rights, relevant to the more favourable outcome of proceedings, is found 12) the Constitutional Court, while deciding on a constitutional appeal, finds a   violation or denial of a human or minority right or a freedom guaranteed by the Constitution in the civil proceedings, and that might be relevant for a more favourable outcome.” C.     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, 13/2016 and 108/16) 74 .     The Courts Organisation Act was enacted in 2008 and came into force on 1   January   2010. This Act regulates the judicial system in the Republic of Serbia, as well as the organisation, competence and jurisdiction of the courts. 75.     The Supreme Court of Cassation has its seat in Belgrade, and as set out in Articles   30 and   31 of the Courts Organisation Act it: i) decides on extraordinary legal remedies lodged against decisions of courts of the Republic of Serbia; ii) decides on conflicts of jurisdiction between courts if this does not fall under the jurisdiction of any other court as well as on transfers of jurisdictions of the courts; iii) determines general legal views in order to ensure the uniform application of law; iv) evaluates the application of the laws and other regulations, as well as the work of courts; v)   appoints judges of the Constitutional Court, provides opinions on candidates for the President of the Supreme Court of Cassation; and vi)   exercise other competences set forth in the Act. 76 .     As provided in Article   43 of the Act, the Supreme Court of Cassation must hold departmental meetings of the Supreme Court of Cassation ( sednice odeljenja Vrhovnog kasacionog suda ) where the issues arising from the scope of work of different courts’ departments are analysed . The departmental meetings of the Supreme Court of Cassation are, in particular, convened when an issue of inconsistency of domestic case-law appears. Legal opinions ( pravna shvatanja ) adopted at those meeting are binding for all chambers ( veća ) of the relevant court’ departments. D.     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, 39/2016, 56/2016 and 77/2016) 77 .     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 of appeal 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. E.     Constitutional Court Act ( Zakon o Ustavnom sudu - published in Official Gazette of the Republic of Serbia nos. 109/07, 99/2011, 18/13-decision of the Constitutional Court, 40/15 and 103/15) 78 .     Article   85 §   2 provides that appellants should substantiate their constitutional appeals with any and all evidence of relevance for the determination of their case, provide a copy of the impugned decision, and document that all other effective remedies have already been exhausted. III.     RELEVANT DOMESTIC PRACTICE A.     Relevant decisions of the Supreme Court of Cassation 1.     Decision of the Supreme Court of Cassation no. Rev2   400/2015 / Rž   134/2015 of 2   April   2015 79 .     On 2   April 2015 the Supreme Court of Cassation overturned judgment no.   Gž1-2008/13 of the Belgrade Court of Appeal of 20   March   2013 and ruled in favour of the claimant in a matter concerning the payment of the difference between the value of the received and anticipated salaries. It held that, while delivering the judgment of 20   March   2013, the Belgrade Court of Appeal had incorrectly applied and interpreted domestic law. 80 .     The Supreme Court of Cassation acted by virtue of Articles   395 and   399 of the former Civil Procedure Act; those were the provisions the Supreme Court of Cassation used when a need to harmonise case-law of the courts of appeal arose. 2.     Decision of the Supreme Court of Cassation no. Rev2   381/2016 of 17   March   2016 81.     Acting under Article   404 of the new Civil Procedure Act and with the purpose of harmonising the inconsistency in the domestic case-law, on 17   March   2016 the Supreme Court of Cassation overturned judgment no.   Gž1 3851/2014 of the Belgrade Court of Appeal of 30   October 2015 in which the complaint of a certain J.T. concerning the payment of the difference between his anticipated and received salaries was rejected. The Supreme Court of Cassation found that the judgment should have been rendered in the claimant’s favour. 82.     The case was remitted to the Belgrade Court of Appeal. 3.     Decision of the Supreme Court of Cassation no. Rev2   1383/2016 of 21   July   2016 83 .     Acting under Article   404 of the new Civil Procedure Act and with the purpose of harmonising the inconsistency in the domestic case-law, on 21   July   2016 the Supreme Court of Cassation overturned judgment no.   Gž1 2644/2015 of the Belgrade Court of Appeal of 25   November   2015 and judgment no. P1   5570/11 of the Court of First Instance in Belgrade of 26   May   2014 in which the complaint of a certain R.R. concerning the payment of the difference between the anticipated and received salaries was rejected. The Supreme Court of Cassation found that the judgments should have been rendered in the claimant’s favour. 84 .     The case was remitted to the court of first instance. B.     Decision of the Constitutional Court of 13   January   2016 85 .     On 13   January 2016 the Constitutional Court found a violation of the right to a fair trial in a case with facts similar to the applicants’. In particular, 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. 86.     D.B had been an employee of Belgrade Special Prison Hospital ( Specijalna zatvorska bolnica Beograd ). On 19   September   2013 the Belgrade Court of Appeal had rejected D.B.’s appeal. On 21   October   2013 D.B. had lodged a constitutional appeal (Už-8442/2013). 87.     D.B. had been represented before the domestic courts by the same lawyer who is representing the first, second, fifth, sixth, eleventh, twelfth, thirteenth and eighteenth applicants before this Court. D.B.’s claims and appeals at the domestic level had been the same as the claims and appeals of those applicants; the time-frame had also been the same. In the course of the proceedings before the Constitutional Court, D.B. referred to the decision of the Supreme Court of Cassation of 2   April   2015. 88 .     Finding the violation of D.B.’s right to legal certainty was an integral part of her right to fair trial, 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 complainant. In the Constitutional Court’s view those circumstances are enough for the Constitutional Court to find a violation of the right to equal protection guaranteed under Article   36 §   1 of the Constitution.” THE LAW I.     JOINDER OF THE APPLICATIONS 89.     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. II.     ALLEGED VIOLATION OF ARTICLE   6 §   1 OF THE CONVENTION 90.     The applicants complained that the domestic courts’ rejection of their civil claims and the simultaneous acceptance of identical claims lodged by other claimants had resulted in a breach of their rights guaranteed under Article   6 §   1 and Article   14 of the Convention, and Article   1 of Protocol no.   1 and Article   1 of Protocol no.   12 to the Convention. The Court, however, considers that the applications fall to be examined solely under Article   6 §   1 of the Convention, which in relevant part reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a   fair ... hearing ... by [a] ... tribunal ...” A.     Admissibility 1.     The parties’ submissions (a)     The Government 91.     The Government submitted that the applicants had not exhausted domestic remedies as required by Article   35 §   1 of the Convention. Their arguments are fourfold: Firstly, the Government asserted that making an application for reopening of proceedings on the grounds provided in Article   426 §   1   (12) of the new Civil Procedure Act (see paragraph   73 above) was an effective remedy in the applicants’ situations. They pointed to the decision of the Constitutional Court of 13   January   2016 (see paragraph   85 above) in which a violation of an appellant’s right to a fair trial had been found in a case similar to the applicants’. In accordance with Article   426 §   1   (12) such a   decision, in the Government’s view, had constituted relevant grounds for the reopening of proceedings; Secondly, the Government claimed that the applicants had failed to make use of the appeal on points of law as provided for in Article   395 of the former Civil Procedure Act (see paragraph   72 above). In their view, since this remedy had been effective in the cases of the applicants’ colleagues, it was highly probable that had the applicants used it, they would have succeeded (see paragraphs   17-18 and   79-80 above); Thirdly, the Government argued that the applicants had failed to pursue an adequate avenue of redress in order to be successful in their claims for compensation. Specifically, the Government claimed that the applicants should have first initiated administrative proceedings and, if the outcome of those proceedings had been unfavourable, lodged complaints with the civil courts (see paragraph   14 above); Fourthly, the Government submitted that the applicants had failed to complain properly before the Constitutional Court. 92.     In the alternative, the Government indicated, in respect of the fourth applicant, that in his constitutional appeal he had alleged a violation only of his right to a fair trial and, accordingly, had failed to raise the complaint concerning the violation of his right to legal certainty properly. (b)     The applicants 93.     All the applicants contested the Government’s claims. They stated that by lodging the compensation claims before the civil courts they had pursued an adequate avenue of redress. 94.     The first, second, third, fifth, sixth, eleventh, twelfth, thirteenth and eighteenth applicants, also, disputed the Government’s view about the effectiveness of an application for the reopening of proceedings. 95.     The seventh applicant contested the Government’s allegation concerning the use of an appeal on points of law. He claimed that, as an extraordinary legal remedy, an appeal on points of law could not be deemed an effective remedy. Moreover, in accordance with Article   395 of the former Civil Procedure Act the success of the said remedy depended on the positive assessment of the court of appeals; tho